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Litigation 101: How to file a lawsuit

28 April 2011

With litigation seemingly at the heart of many legal matters, today I offer a primer: How to file a lawsuit.

Please note that my post uses Harris County (Houston, Texas) by way of examples, but all you have to do is Google your state and/or county to find the same type of information specific to your jurisdiction.

Step 1 – The first order of business is determining a cause of action. This is discerned by consulting the appropriate statutes to see if any laws are being broken, and to check whether or not the law provides a remedy.

In Texas, in addition to reading the individual codes (eg Property Code, Government Code, etc), you’ll want to check out the Texas Civil Practice and Remedies Code.

Keep in mind that some types of suits, such as discrimination suits, require that they be filed first as a complaint with your local EEOC office before receiving permission to sue. Other similar suits may require statutory notice, or some other type of legal prerequisite. A lawyer can offer the best advice regarding these preliminary steps.

Your lawsuit, called an Original Petition, will need to clearly state the nature of your claim, specifically referring to which particular statutes, codes, etc are being broken, and will need to enumerate the remedy you are asking for. For example, do you want damages (ie money), or do you want a  temporary injunction? You must be specific when asking what you want the court to do. Your petition will end with what’s called a “prayer for relief,” where you’ll specifically beseech the court for said relief.

You will also need to carefully check that any statute of limitations has not passed, barring you from filing your suit. For example, for some medical malpractice suits the limitation is two years, meaning that you may file suit for up to two years after the incident that led to the controversy. It’s important to check for statutes of limitations as soon as you realize there’s a controversy.

Your particular controversy can cover many possibilities, from breach of contract to dissolution of marriage. It’s imperative that you select the correct claim, and the correct remedy.

Step 2 – The next step is determining the type of suit: Is it a state or federal case? Is it an administrative case (ie will it have to go through an administrative agency, such as the Internal Revenue Service, or Social Security Administration?). In these cases, typically all administrative remedies must be exhausted before a suit is permitted. Is there any type of alternative dispute resolution (ADR) required? For example, many contracts now require some form of alternative dispute resolution (eg mediation, arbitration) before the filing of a lawsuit is permitted (another good reason to always read anything you sign very carefully!).

(The answer to the question “Is it civil or criminal?” is a gimme as all criminal cases are filed by the state or federal government, therefore the answer is “it’s civil law.”)

Step 3 is determining the correct parties. It’s quite possible to sue the wrong person or corporation, which leads to a lack of standing, ultimately killing your lawsuit. Finding the correct names of people is generally simple. For example, you may check voter registration information in Harris County here. You may be able to locate the correct spelling of someone’s name, and their address. You may also check for “doing business as” and assumed names at the Harris County Clerk’s site here, or the correct name of a corporation at the Texas Secretary of State web-site here. The reason for this is that people have the constitutional right to be notified that they are being sued, and indeed must be notified before the lawsuit can proceed.

Beware of filing without correct party names, as you could lose standing or have your claim dismissed. Think about a corporation, many of which have several different “official” names, branches, parent companies, etc. Make sure you’re suing the right one, and in the correct capacity.

The correct names of the parties, their capacity (ie does the individual have authority to make decisions regarding the case?), and their standing (ie do they have an interest in the outcome of this particular case?) will need to be identified in the “caption” of the petition.

Step 4 is determining jurisdiction. Once you know what type of suit you’ve got on your hands, and who the correct parties are, you’ll need to discern which court handles that type of controversy. For example, in Harris County, breach of contract cases are typically handled in the state district courts, while dissolution of marriage is handled in the family law courts. You can usually Google your state’s or county’s courts to find out what types of cases are handled where. More sparsely populated areas will have fewer (or no) specialized courts, while Harris County has many.

Step 4(a) is finding that particular court’s website, if there is one, to locate their local filing rules. These will generally be listed on the home page somewhere. Many courts have very specific rules with respect to how documents should be filed with the court. If you can’t find the information online, a simple phone call to the court clerk should do the trick. And remember to always be courteous to your court personnel! They can be very helpful and great sources of information … or not.

And that’s about it! Keep in mind this is just a bare bones informational article — and I’d strongly suggest consulting with an attorney if you are considering filing a lawsuit. Many attorneys conduct litigation day in and day out, and are really the experts. However, it’s also possible to do it yourself (called pro se). Toward that end, you may find some help at the Pro Se Law Center, or see this Pro Se Litigation handbook (it’s a bit dated, but I find the information it contains less temporal).

For Texas residents, there is an excellent site by the Fred Parks Law Library at South Texas College of Law covering Texas rules, complete with some annotations and notes.

There is also a link below to an example of how an original petition should look. Most courts will have specific rules regarding this, so be sure to check ahead of time.

Note: I am not an attorney. Should you wish to file a lawsuit, I encourage you to contact a licensed attorney specializing in the area of law which pertains to your particular legal dilemma.

The following links have to do with Texas or Harris County, but you can easily Google for the same type of information in your state or county:

Texas Rules of Civil Procedure
Texas Civil Practice and Remedies Code
Harris County Clerk’s Office Web-site 
Texas Secretary of State’s Web-site 
Harris County Tax Office’s Web-site 
Harris County Online Forms & Database Searches
You can see an example of an original petition filed in Texas here.

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