If you decide to pursue a lawsuit in court, the first step is to file a complaint against the person or entity that has harmed you. This party will be known as the defendant, while you will be known as the plaintiff. You will need to file your complaint within the statute of limitations for your type of case. This varies from state to state and can range from one year to several years. Even if you are well within the statute of limitations, you should try to pursue your lawsuit as soon as you can while the memories of witnesses and other evidence remain fresh.
You also will need to file your complaint in an appropriate court. Only certain courts will have jurisdiction, which is the authority to hear a case and make a binding judgment. Jurisdictional rules can be very specific, but generally the defendant must have some connection to the state in which you are filing the case. In some cases, a plaintiff can file a lawsuit in federal court instead of state court, or a defendant may be able to “remove” a case that was originally filed in state court to federal court. This most often happens if the parties are from different states, and the plaintiff is seeking at least $75,000. It also can happen if the case involves questions of federal law or the Constitution.
Why Statutes of Limitations MatterFiling a case outside the statute of limitations likely will lead to dismissal regardless of how strong the case is.
The complaint will need to comply with the specific rules of the court in which you are filing it. It must carefully lay out the defendant’s actions and explain how they caused harm to the plaintiff or infringed on the plaintiff’s legal rights. The plaintiff also will need to ask for a certain remedy or combination of remedies. Most commonly, a plaintiff will seek monetary damages to compensate them for the harm caused by the defendant’s actions. However, there are also situations in which a plaintiff will ask a court to issue an injunction. This orders the defendant to do something or refrain from doing something. Finally, in rare cases, a plaintiff may ask a court for specific performance. This means that the defendant must follow through on their obligations under a contract, such as a contract to sell a home.
The plaintiff also may need to address jurisdictional requirements. If you are bringing the case in a federal court, for example, the complaint should explain why the federal court has the authority to hear it.
Usually, the plaintiff will attach the complaint to another document known as a summons. An officer of the court will deliver the complaint and the summons to the defendant. This step is formally known as service of process. The summons will provide the defendant with basic background information about the case and where it is being brought. It also will notify the defendant of the deadline for filing an answer and warn the defendant that the court will enter a default judgment against them if they do not file an answer.
Unavailable DefendantsIf the defendant is not personally available to receive service, state or federal procedural rules provide alternative options. The plaintiff may be able to arrange for service on someone living with the defendant, for example, or they may be able to publish notice of the lawsuit in a newspaper if the defendant cannot be found.
What if you have been sued? You will need to make sure to file an answer within the required time period, or a default judgment will be entered against you. (A default judgment has the same effect as a judgment after a case has been fully litigated.) The answer is your opportunity to provide your version of events. You can admit some of the plaintiff’s statements if they are true while clearly denying the parts of the plaintiff’s story that are not true.
In some complex situations, a defendant may have a counterclaim against the plaintiff. For example, the plaintiff might allege that the defendant has failed to pay them after purchasing an item, but the defendant might have their own claim that the plaintiff sent the item in a defective condition. This creates a two-way lawsuit in which either or both sides can receive a remedy from the other. A plaintiff responding to a counterclaim must follow similar rules to a defendant answering a complaint. Whether an argument should be raised as a defense or a counterclaim will depend on the factual circumstances and the law governing the case.
Last reviewed October 2023
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