When you have been wronged in some way, the urge to litigate can be overwhelming. You suffered damages! Someone wronged you!
You can whip out your smartphone and call the nearest law firm, but you might find that the lawyer refuses to handle your case because it’s not financially feasible for them to do so. So, before we discuss how to sue someone in court, let’s take a look at whether your case is one that you should pursue.
Do you really have a good legal case?
Just because the neighbor’s kid ran a dune buggy over your lawn and caused $17,500 in landscaping bills doesn’t mean a lawyer will be interested in pursuing justice on your behalf. This goes for all types of cases, including car accidents, veterinary malpractice, and nursing home abuse. Even though it’s important to you, it might not be important to anyone else.
Take a step back and really, really look at your case. Be objective. Is there a reasonable chance you will recover a not-insignificant amount of damages? Often, those who are wronged simply want everyone to know they were wronged (especially the person who wronged them). But attorneys need to pay their rent and keep their lights on. Accordingly, attorneys typically accept or reject cases based on whether they will be sufficiently compensated, not whether an injustice has occurred.
Once you’ve decided your lawsuit is financially feasible, you’ll need to decide whether it’s winnable. Remember, most personal injury attorneys accept cases on a contingent fee basis, meaning they don’t get paid unless you recover damages. To put it simply: personal injury attorneys don’t handle cases they don’t think they can win.
You must establish certain facts based on the nature of your claim. These facts are called “legal elements.”
- The defendant owed you a duty,
- The defendant breached the duty owed,
- The defendant’s breach was the cause of your injury, and
- You were, in fact, injured.
Without a law degree, it may be hard to evaluate your likelihood of success. Fortunately, most initial consultations with attorneys are free. An attorney will be able to tell you whether a case is worth pursuing.
Of course, if you plan to file a lawsuit pro se (i.e., represent yourself), you’ll simply need to decide whether pursuing the lawsuit is worth your time and money. Although you won’t be paying for an attorney, you will likely have other expenses, which may include:
- Filing fees
- Service of process fees
- Research expenses
- Investigation expenses
- Cost of expert witnesses
- Cost of deposition services
Is there an alternative to suing someone in court?
Lawsuits are long, difficult slogs, especially for someone who doesn’t make a living handling them. How will you know of any pre-filing requirements? What are pre-filing requirements? Will you know how to prepare for hearings and depositions? How should you act in court? Do you need to bow to anyone?
Being a lawyer is hard; that’s why it takes so much time and effort to become an attorney. Lawyers typically do not represent plaintiffs at small claims court because the stakes, shall we say, are too low -- but that makes those cases no less complex for a layperson.
If the dispute can be solved by any other means, even alternative dispute resolution like arbitration or mediation, do that instead. It’s easier for everyone involved, less stressful, and likely cheaper, too.
Have you sent a final demand letter?
Many people actually forget to do this, but sometimes one last demand letter, hand-delivered or sent by certified mail with return receipt requested, can make an enormous impact.
The letter should be typed and official-looking, with your contact information clearly listed. In this letter you should state what happened, the previous attempts you’ve made for restitution, and what amount of money you are willing to accept. Be sure to make it clear that if they don’t comply, you will file a lawsuit.
Is the defendant able to pay?
Vengeance won’t taste as sweet when you realize that even though you got a $50,000 judgment, the defendant has already filed for bankruptcy. Don’t get caught paying for litigation that won’t reap any reward.
There are methods to recover money from a defendant who can’t pay or refuses to pay after a judgment is entered, such as wage garnishment, but those methods typically require you to hire an attorney.
How to start your lawsuit
All lawsuits begin by filing and serving the summons and complaint:
- A summons is simply a document that notifies the defendant that they’re being sued.
- A complaint sets forth the facts of your case, the defendant’s liability, and how much money you’re demanding.
You must file and serve your complaint in compliance with your state’s rules of civil procedure. What’s more, you must file your complaint in the proper court and in the proper geographic location. In most personal injury cases, you can file your complaint:
- In the county where the defendant lives, or
- In the county where the accident occurred.
Even if you think it’s a small case that wouldn’t warrant a lawyer’s involvement, talk to an attorney anyway. The first meeting is usually free, and the attorney can explain:
- What type of case you have,
- Whether you should pursue it alone, and
- How long it might take.
We have even written a list of materials that you should tailor to your situation and bring with you to that first meeting.
California Courts lists these as the steps for how to sue someone. Keep in mind the actual courts and processes may vary by state, but generally you will need to do these things if you’re pursuing a case by yourself:
- Figure Out How to Name the Defendant
- Ask for Payment
- Find the Right Court to File Your Claim
- Fill Out Your Court Forms
- File Your Claim
- Serve Your Claim
- Go to Court
Finally, here are some additional resources that should help answer the question of how to sue somebody in court: