Filing a Lawsuit
By FindLaw Staff | Legally reviewed by Garrett Monteagudo, Esq. | Last reviewed January 19, 2023
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There are many circumstances that can lead to a lawsuit. For example, if you were in a car accident and your car was totaled and you suffered from personal injury, you might want to go to court to get compensation for your property damage and medical bills. While bringing a lawsuit is not necessarily a decision to take lightly, sometimes litigation can be the best avenue to straighten out a dispute.
In the sections below, you can find a range of articles dealing with the decision to sue and how to go about it. The topic of lawyers and their fees is also covered below, with information addressing what kind of services are offered by an attorney, the types of fees that can be charged, and more. This article provides general information about the process of suing in American courts.
Civil procedure is a set of rules that guides the court process, regardless of whether your case is a criminal or civil case. You think of them generally as court rules. Under civil procedure laws, personal (or in personam) jurisdiction can be defined as the court's power to compel a defendant to appear before it, to adjudicate claims made by or against the defendant, and to enforce any judgment entered in connection with such claims.
In the absence of personal jurisdiction, a court may not exercise judicial power over a defendant. A court must dismiss a lawsuit upon discovery that personal jurisdiction does not exist. Any judgment entered by a court that is eventually found to lack personal jurisdiction is ineffectual and need not be honored by a court in a different jurisdiction.
The basic concept behind determining personal jurisdiction is evaluating whether courts in that state have a vested interest in you and a right to make binding decisions over you. For more information, visit FindLaw's article on Due Process and Personal Jurisdiction.
What Happens Before Trial
Cases are going to trial less frequently these days and parties are increasingly opting to settle "out of court." While you may know right away that you'd like to take your cause of action to court, the trial is expensive and time-consuming. The court system, which can sometimes be overwhelmed with other cases, tries to encourage pretrial settlements. Some jurisdictions even mandate parties to undergo alternative dispute resolution methods, such as mediation or arbitration, in hopes that they might settle before going to trial. However, this is true only for civil lawsuits rather than criminal lawsuits.
The Stages of Court Trials
There are several steps that must happen before the case goes to trial, even after undergoing alternative dispute resolution. For instance, the plaintiff must serve the defendant with a court summons and a copy of the plaintiff's complaint (note that the plaintiff can get a process server rather than doing it individually). This is called service of process, and the plaintiff will want to get proof of service of process in case there are any disputes. The defendant can use a waiver for the service of process.
The opposing party will also want to raise any counterclaims against the plaintiff. If the defendant does not abide by the filing time limits or fails to show up to any court proceedings, the court may enter a default judgment in favor of the plaintiff. All parties must abide by the statute of limitations for their type of case.
Before the case goes to trial, the attorneys will work to gather evidence and take depositions of all witnesses. The judge will hold pretrial conferences to discuss the details of the trial beforehand. The judge and attorneys will review the evidence, witnesses, and the structure of the trial.
A complete civil trial typically consists of six main phases:
- Choosing a Jury
- Opening Statements
- Witness Testimony and Cross-Examination
- Closing Arguments
- Jury Instruction
- Jury Deliberation
Motions for Summary Judgment
Frequently, during the litigation process, one or both of the parties involved will attempt to use a procedural device known as the motion for summary judgment to dismiss certain issues from the court case. As the name implies, the motion for summary judgment is a motion filed by one of the parties seeking to obtain a judgment on all or part of the case in a summary fashion. In other words, the motion for summary judgment is a method to decide an issue (or the whole case), without the need for a jury trial.
Payment Methods for Attorneys
There are a few different payment methods in exchange for attorney representation, which should be outlined in your representation agreement or fee agreement. One method is through a retainer. A retainer is a dollar amount that represents a certain number of the lawyer's work hours at a set price, sometimes representing an estimate of the total cost of the lawyer's services on the case. A client pays a retainer in advance. By accepting the retainer, the lawyer is agreeing to not only work on your case but also not to accept any cases that might present a conflict of interest with the case.
Attorneys may also be paid an hourly fee, where the attorney's hourly rate is based on their experience and the client is billed for the actual time expended on their case. Additionally, attorneys may be hired through a statutory fee, which is where a state statute awards the prevailing party their attorneys' fees to be paid by the non-prevailing party. Finally, lawyers may also be hired through a contingency fee, which is where an attorney works for a client on the agreement that the attorney will take a percentage of the amount awarded to the prevailing party.
Any costs for filing fees (even for e-filing), referral fees, and costs associated with your attorneys' overhead costs may be added to your bill. Be sure to discuss these details fully with your attorney before signing your representation agreement. For more information, visit FindLaw's Types of Legal Fees.
How a Civil Attorney Can Help
Seeking out legal advice about your case before filing it is just the first part of a long and often complicated process. An experienced civil attorney will be able to analyze the information and evidence you've gathered, and advise you about whether or not you have a viable claim. To learn more about your case, you can seek out a free claim evaluation from an experienced attorney.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.