If you want to sue someone, you'll need to follow court procedure to get the remedy you're after. Whether you're proceeding alone or with an attorney, filing a lawsuit requires the following steps:
"Naming the defendant" means identifying the party or parties you plan to sue. This may seem straightforward—you sue the person who harmed you or who owes you money. But figuring out whom to sue isn't always so simple.
For example, if you buy a home and find out the wiring is defective, you might need to name both the electrician and the general contractor. Otherwise, the electrician may claim that he simply followed the direction of the contractor.
Deciding whom to name in a lawsuit sometimes involves thorny legal questions. Hiring an attorney at this stage can be helpful.
If you don't have an attorney, there are still some general rules you can follow. If you're filing a lawsuit against:
An individual: include the person's first name, middle initial, and last name.
Spouses or domestic partners: write both parties' full names.
A business owned by one person: name the owner individually and the business' name. For example, "Edward J. Massen, individually and dba [doing business as] Springfield Accounting Services, a sole proprietorship."
A partnership: include the partnership's name as well as the partners' individual names.
A corporate-owned business: include the names of the corporation and business.
A party involved in an auto accident: include the names of the drivers and the owners of the all the vehicles involved.
You don't want to sue someone when the matter could've been resolved out of court. To see if the other side is willing to cooperate, ask in writing for what you're seeking by sending a demand letter.
A demand letter serves several purposes. It informs the other party of your intent to file a lawsuit, gives them a chance to resolve the dispute, creates evidence to support your case, and shows the court that they had reasonable opportunity to resolve the dispute.
When you write your letter, be sure to do the following:
Briefly review the facts. This may seem counterintuitive since the other party knows the facts, but remember that a judge may read this eventually too.
Don't attack or make threats. A demand letter shouldn't be hostile — its purpose is to resolve the matter as quickly and amicably as possible. Keep the tone polite.
Specifically state what you want and include a deadline. For example, "Please send me a check for $5,680 on or before January 20, 2016." A deadline of 1 or 2 weeks is usually reasonable.
End by reminding the party that you will immediately use your legal remedies if the demand is not met by the deadline.
Keep copies of the letter and send via certified mail. You don't want to give the party the chance to deny receiving your letter, so send it certified and request a return receipt.
Before you can file suit, you'll need to determine what court to file in. Federal courts can only hear certain types of cases, such as those involving parties from different states when the disputed amount is above $75,000. State courts can hear almost any case.
Navigating through these jurisdictional issues can be difficult, which is why you might want to consult an attorney before you file. If you file a lawsuit in the wrong court, the other party can ask the judge to throw out the suit.
You'll proceed in small claims court if your complaint falls under your state's small claims dollar limit. This ranges from $3,000 in Ohio to $25,000 in Tennessee. In small claims court, you'll fill out a "plaintiff's claim and order to go to small court" to start the process.
The fee for filing in small claims court will vary. In California, the cost to file ranges from $30 for claims less than or equal to $1,500, to $75 if the claim is more than $5,000.
If your claim is too large for small claims court, you'll need to file the papers listed below. The filing fees for civil lawsuits vary, but are usually several hundred dollars.
Complaint: discusses your claim, verifies jurisdiction, and makes a demand for relief (states what you're seeking).
Summons: a court order that states when and where the lawsuit will take place. Notifies defendants that they're being sued, references the complaint, and sets forth a deadline by which they must file an answer.
Service of process: you'll include a certificate of service with your complaint that lets the court know how and where you had the defendant served with the complaint and summons.
Serving the other party means delivering the initial court papers. Proper service of process requires that a competent adult—excluding you or any other party in the case—deliver a copy of the papers to the person being sued.
You might have a friend or co-worker, professional process server, or sheriff's deputy do this for you. Here's how service of process works:
The server approaches the person being sued.
The server indicates to the defendant that these are court papers.
The server hands the defendant the papers or places them near the defendant.
You complete the proof of service form and file it with the court.
Before your court date, you'll need to gather your court papers, evidence, and any witnesses. Many states don't allow you to bring an attorney to small claims court, but, if yours does, your attorney will handle this for you.
In small claims court, a magistrate will make the final decision. How long a small claims' hearing will take depends on the number of cases on the docket that day and how long their hearings take. Plan on being in court for the entire day.
In state or federal court, a judge or jury will make the final decision. Civil lawsuits can take days, weeks, or months to try. The rules of procedure in a civil lawsuit are much more formal and complex than in small claims court, so an attorney familiar with these rules may be useful.
The process to sue someone is almost always more costly and time-consuming than settling out of court, but its not always possible to resolve things that way. If you do end up going to court, now you know what to expect.