If you have a legal dispute and believe that your rights have been violated, starting a lawsuit may be the best way to resolve the issue. But where do you begin? The process of starting a lawsuit can be overwhelming and confusing, but with some basic knowledge and guidance, you can take the necessary steps to protect your legal rights.
Here are some key steps to take when starting a lawsuit:
- Determine whether you have a valid legal claim Before starting a lawsuit, it’s important to determine whether you have a valid legal claim. This means you must have a legal right that has been violated and suffered damages or harm as a result. It’s always a good idea to consult with an experienced attorney to evaluate your claim and discuss your legal options.
- Choose the right court Once you’ve determined that you have a valid legal claim, you must choose the right court to file your lawsuit. Depending on the nature of your claim, you may file in state or federal court. The court you choose will depend on the type of claim, the amount of money at stake, and other factors. A knowledgeable attorney can help you decide where to file your lawsuit.
- File your complaint To start your lawsuit, you must file a complaint with the appropriate court. A complaint is a legal document that outlines your claim and the relief you are seeking. It’s important to be as specific as possible when drafting your complaint and to include all relevant facts and evidence to support your claim.
- Serve the defendant After you’ve filed your complaint, you must serve the defendant with a copy of the complaint and a summons. The summons is a legal document that notifies the defendant of the lawsuit and the deadline for responding. Service must be done in accordance with the rules of civil procedure, which can be complex.
- Prepare for trial After the defendant has been served, the case will move forward through the legal process. This may include discovery, where each side gathers evidence and information from the other side. Ultimately, the case will proceed to trial, where a judge or jury will decide the outcome.
Conclusion
Starting a lawsuit can be a complex and time-consuming process. It’s important to have an experienced attorney by your side to guide you through the process and protect your legal rights. With the right legal representation, you can achieve a successful outcome and move on from your legal dispute.
Video Transcript
In this video, you get answers to these questions:
- Where Do You Begin?
- Are Cases Filed or Served First?
- What Is Pocket Service?
- What Documents Start a Lawsuit?
- What Goes in a Complaint?
- How Is Starting a Lawsuit Different in Each State and How Do You Find The Procedure?
- How Do You Know If the Case Should Go to Arbitration?
- How Do You Come Up with the Basis of the Claim?
- Who Is the Responsible Party or Parties for the Claim?
- What Type of Lawsuit Do You Need to File?
- What Is the Deadline for Filing the Lawsuit (Statute of Limitations)?
- What Court Has Jurisdiction Over the Case?
- Do You Need a Lawyer to Represent Me or Can You File as a Pro Se Litigant?
- What Evidence Do You Need to Support My Claims?
Starting a lawsuit, where do you begin? That is the question I am answering today. I am Aaron Hall, an attorney for business owners and entrepreneurial companies. If you are thinking about starting a lawsuit, you probably have a lot of questions. How do you file a lawsuit? When technically does the lawsuit get started? What do you need to consider before filing a lawsuit? What kind of documents are involved in filing a lawsuit? We are going to talk about all of that today.
Before we get started on that, I want to make sure that you at least have downloaded the free PDF that I give to business owners to help them avoid legal problems and stress associated with legal issues running a company. It is called Seven Common Legal Mistakes Made by New Businesses. It is absolutely free. You can get it at aaronhall.com/free or click the link in the description below. Not only do you get that PDF, but I send follow-up videos which aren’t available online, explaining how you can avoid legal problems in your company and specifically the seven most common legal problems.
I provide these educational videos so that you can spot issues to discuss with your attorney and you can become more empowered in running a company. But I should note it is not as a replacement for an attorney. I don’t recommend that you start a lawsuit in a regular district court without working with an attorney because there are so many rules, and there are so many formalities that are required. Let’s get into the questions.
Where Do You Begin?
When you are starting a lawsuit, where do you begin? Well, if a client comes to me and explains that something has been done illegal and wrong against them, typically, then we start making a list of the important facts and the legal claims that need to be presented to the court. So where you begin in starting a lawsuit is thinking about what are the important facts and writing those down and what are the legal claims. For example, if you had a contract and the other party breached it, the claim would be breach of contract. If somebody had a legal duty to take care of something and didn’t, you might bring the claim of breach of fiduciary duty or negligence, for example. So legal claims are often legal terms, and it is important to lay out for the court what those claims are.
Certain types of claims have special rules associated with them. For example, if you claim that a person engaged in fraud, you have to use very specific and particular facts supporting what they did wrong. In other words, you have to show the various elements of fraud as it relates to the facts and the circumstances that occurred. You can’t just say, “Hey, they engaged in fraud.” You have to say, “On this date, they told me the following general words or general statements. And those statements were false and they knew they were false at that time. And they knew I was relying on those false statements.” That is an example of where you are providing specificity or particularity in the factual statements to support the elements of fraud.
So what do we have so far to get started? You need to have the key facts, and the claims, and typically, you write that down on what is called a complaint. It is a legal document that has the names of the parties, the court, the facts, and then the claims, and then you will have a little section on the complaint that says the request or the relief you are requesting from the court. For example, you might say, “So I am requesting that the court award me a hundred thousand dollars, or I am requesting that the court order the other party to take some sort of action.”
To start a lawsuit, you also usually need a summons. A summons is a document that says to the other side you have to show up in court and you have been summoned or you have been called to court. So the summons says they have to show up. The complaint says what is the basis of the lawsuit and then the summons and complaint usually needs to be hand delivered, which is called served on the other party. Now, there are some exceptions where service can be by mail or by publication, for example, but generally, that is only if you have already tried to serve them in person, or a specific statute might allow service by mail. For example, the conciliation court in Minnesota. If the claim is for a low dollar amount, then service can be sent by mail. And by the way, if it is sent by mail, usually it is some sort of registered mail or return or signature required, something like that.
Every state has different rules, and even some courts have different rules about delivering the lawsuit documents to the person that you are suing. That is called Service of Process, and so it is important to follow the court rules. Otherwise, that person can ignore the summons, and they don’t actually have to respond to the lawsuit. The lawsuit will be meaningless. Now, you might wonder about filing the lawsuit versus serving it. In Minnesota, you have to serve a lawsuit in state court before the lawsuit will start. But in Minnesota, federal court, and most other states, you file a case with the court first, and then you serve it. So the takeaway here is to make sure you check the rules for your court before you decide whether to serve the lawsuit or file the lawsuit first. Usually, both have to be done, but they have to be done in one order or the other.
Are Cases Filed or Served First?
While this question is quite simple, it depends on what the court requires. Some courts require the filing of the case to be done first. Some require that the service of the lawsuit be first. That means delivered on the other party, and then it is filed in court.
What Is Pocket Service?
Well, Minnesota has a rare procedure where in state district court, rather than filing the case in court first, you serve it on the other party. That is called pocket service. You have up to a year under current rules to actually file that case in court after you have served it on somebody. So once they have been pocket served, there is one year of time that can go by before you have to have filed that in court or your case is dismissed with prejudice, which means that you lose your case and you can’t bring it later.
Now, you might be saying, why would any court allow somebody to be served and not require that the case be filed in court? The public policy interest in Minnesota is to allow parties some time to work it out, and maybe they can settle it without ever having to file it in court, and that means they were able to keep the matter confidential because it wasn’t filed as a public document. It also means the court didn’t have to expend resources to deal with a case that ultimately settled.
What Documents Start a Lawsuit?
In federal court and most state courts, it is two documents: summons and complaint. The summons tells a person you have a legal duty to appear in court and respond to a case that has been commenced against you. The complaint says, “Who are the parties? What are the facts that support why you are entitled to relief? And what are the legal violations or the legal claims or legal counts?” So, for example, negligence, breach of contract, tortious interference, violation of a statute, etc. What did they legally do that was wrong? Those are usually the parts of a complaint, and then at the very end, you will have a section on what is the relief that you are requesting from the court. Then the party or the attorney who drafted these documents signs them. Those are the documents required for most lawsuits to get started.
What Goes in a Complaint?
Let’s talk about how to draft a great complaint. Usually, I start out by having a fact section, a claims section, and a request for relief. And at the very end, I will add an introductory section. In most complaints, I write the introduction last because it is much easier to summarize what the rest of the document is about after you have written the entire document. So the introduction is usually a summary for the court to have a little bit of a roadmap.
Here is what the complaint has in it. The facts section in the complaint is usually a few different parts. The first part, who are the parties? The second part, why does the court have jurisdiction and venue? By the way, that can be moved up above the facts section sometimes, depending on the preference of the person drafting the complaint, and then, the final portion of the facts section is the largest portion, and that is usually a chronological list of the important facts relevant to the case.
After the facts section, you have a claims section, which is where the legal claims are listed, and the element of each claim is listed, and the key facts that fulfill that element are listed. So, in other words, let’s say you have a breach of contract. In order to have a breach of contract, there are a few elements. You have to establish there was a contract, which is an offer, acceptance, consideration, and no contract that would otherwise violate public policy or the law. So, you have a contract, step one. You have to then show that the other party breached the contract. So breach is the next part. Element number one contract. Element number two breach.
Next, you have to show that there was some harm that was caused, and usually, that needs to be foreseeable harm, direct harm, or at least a reasonable person would have known that that harm would result. Let me talk about that just briefly. Say, for example, you went to buy a shirt at a store. You paid the money, you got the shirt, and the reason you were buying it is because you had an interview an hour later, and you open up the shirt, and you see this big tear and this blotch on it. Well, you might say, “Hey, this is a breach of contract. They sold me a shirt that wasn’t new.” It was damaged, but it isn’t reasonable for a store to have known that you would have an interview one hour later and you wouldn’t get that job if it weren’t for the shirt having a blotch on it. So that is a simple example of where foreseeability may be an element of a claim, like breach of contract.
And then, finally, there has to be actual damages. In other words, if somebody broke a contract, but it actually didn’t cause damages to you, it ended up being just fine, then what are you going to ask a court for? Because there weren’t damages to you. So there has to be some damages. That is an example of a claim in the claim section of a complaint, and it has each one of the elements in it. Usually, this is written by an attorney, and if you don’t bring claims in the initial complaint, you might be prevented from bringing them later. So it is important to make sure you got everything in there.
Finally, in the complaint is a section called Request for Relief, and this is simply where you say to the judge, “Here’s what I am asking for.” Maybe it is money for damages. Maybe it is reimbursement of your legal fees or attorney’s fees, which usually you can only request if the law specifically allows for it, and maybe there is some other relief that you are requesting. You put that usually in a little bullet point at the very end. You sign the complaint, and you either serve or file it to get that lawsuit started. Again, I certainly recommend you work with an attorney on this. These are formal documents. They need to comply with State court rules. They are important rules like the rules of civil procedure. It is an entire document of rules that you must follow in bringing a lawsuit in court.
How Is Starting a Lawsuit Different in Each State and How Do You Find The Procedure?
Well, first, you start with which court are you going to file the lawsuit in. And then, you look to find out what are the court rules. Usually, a court will have rules for civil procedure, which is like lawsuits. It will have rules for criminal procedure, which is when you commit a crime, and the government brings charges against you. There are probably other rules as well. Sometimes they are called local rules. Sometimes they are called general rules of practice, and individual judges might also have their own rules, which are often called practice pointers and preferences or something like that. So unfortunately, it is not easy to figure out which rules apply unless you are an attorney who regularly practices in a particular court. But you can call the court and ask them where can I find the rules related to filing a lawsuit and explain a little bit of information. Often courts will also have a self-help desk where they will answer basic questions for people about the court. By the way too, if you have been charged with a crime, you may qualify for a public defender, which is an attorney appointed to you, but usually, you don’t qualify for an attorney to be appointed and paid for you unless you are charged with a crime, and you fulfill certain, poverty requirements.
How Do You Know If the Case Should Go to Arbitration?
Arbitration is basically a private court system where disputes get resolved without them being filed in the public courts. And the general rule is that there are only two ways to get a case to arbitration. First, the parties can agree in advance that they will go to arbitration. For example, in a contract, it might have an arbitration clause. The second way is if the parties agree later to go to arbitration. For example, maybe there was no arbitration clause in a contract, but now the parties are in a dispute. They agree together, “We will submit this to arbitration.” Why would they do that? Well, maybe they want to keep the matter private. They don’t want a public record of it for competitors or newspapers and the media to find out about.
Why would you not want to go to arbitration? Well, arbitrators don’t necessarily have to follow the law. That is a big one. You will have to look at the specific rules of the arbitrator, and usually, they try to follow the law, but interestingly, they don’t necessarily have to. Second, you will have to pay for an arbitrator. So you are going to pay money, whereas, in the court system, judges are paid for by our tax dollars.
How Do You Come Up with the Basis of the Claim?
So let’s say you want to bring a lawsuit, and you are trying to figure out, “What is the claim that I bring?” Well, a claim is basically a law that has been broken. And not a criminal law, like, for example, don’t murder somebody, but we are talking about a law that says: If you agree to something in a contract, you can’t breach that contract, or you can’t be negligent, or you can’t share confidential information of your employer with a competitor.
So usually, what you are going to do is look for the law that has been broken. That is what the claim is. You can look for state statutes, federal statutes, or other laws that are called common law. Now, in the United States, like many other countries, we have laws that are not in statute, meaning they have never been passed by a state legislature or congress. These laws are in existence from prior court decisions. For example, when two partners come together to run a company together, they have a duty, to be honest with each other. They can’t lie to each other. That duty of honesty is in the common law. It doesn’t matter whether the fact that it is not in a statute. Now, by the way, there might still be a statute, but many states don’t have a statute. And prior to states passing partnership laws, they still had laws in the common law, which, again, are just judicial decisions saying, “Hey, basically, there are certain expectations of what is right and wrong in society.” So when you are identifying what is the claim you want to bring, you are going to look at what federal law, what state law, or what common law was violated. That is where an attorney can provide a lot of value because attorneys have the awareness of those laws.
Who Is the Responsible Party or Parties for the Claim?
You might be thinking, who do I sue? Somebody did me wrong, but I am not sure who it was. This is a tough issue and honestly, I am not going to necessarily have an answer for you here because it very much depends on the facts and circumstances of your unique situation.
But here are some guiding principles. Usually, the person who did something wrong has some liability. And if that person worked for a company, as long as they were working within the scope of employment, the company will also have liability that is called respondeat superior. It is a Latin term for the fact that a superior, a company, is responsible for the acts of its employees or agents. But admittedly, it is not always easy to know who is responsible, and that is where an attorney can be very helpful if it is not a clear-cut case.
What Type of Lawsuit Do You Need to File?
If you are thinking about bringing a lawsuit, you have got a lot of questions. And honestly, this is why people hire attorneys because you have to decide between federal and state court. You have to decide between, which county or jurisdiction you are going to bring it in. Are you going to bring it in the one where you live or reside? Or the one where the defendant lives or resides? You will need to decide whether you have to bring it in arbitration. It is unfortunately not easy to determine what type of lawsuit you need to file. Sometimes, you can get help from the court clerk or a self-help desk available at the court.
If you can’t afford an attorney, my best recommendation is try to get some help from a knowledgeable attorney or self-help desk with the court in order to figure out some of the basics about the type of lawsuit to file and where to file it.
What Is the Deadline for Filing the Lawsuit (Statute of Limitations)?
This statute of limitations is basically a law that says after a certain date, you can no longer file a lawsuit, and you might say, well, what is that date? It changes. It is different for all sorts of different claims and issues, but often it is from the date that the injury occurred. So from the date somebody broke the law and caused harm to another person, you are going to have a number of years. For example, six years is the statute of limitations for a breach of contract in Minnesota. Six years is also a statute of limitations for most other claims, including negligence. But every state is different, so you need to look at the state laws or federal laws, depending on which law has been violated under your lawsuit.
And then the other tricky part with statute limitations or these deadlines is when does the clock start running? For example, does it start when the injury occurred or when you learned about it? Because for example, let’s say you have some real estate and somebody dumped toxic chemicals on your real estate, on your property. But you don’t find out about it for 15 years. Did the statute of limitations already run after six years of them dumping on your property, or does it start running when you learn about it?
That is another piece that you need to look at when figuring out what is the statute of limitations for each claim. I have had cases where some of the claims are within the statute limitations, so we can bring them. And some of the claims that we could have otherwise brought have expired. So we are stuck with some claims, and others have expired and are not brought in the lawsuit.
What Court Has Jurisdiction Over the Case?
If you are filing a lawsuit, one of the big questions is which court should you file the case in? And you want to file the case in a court that has jurisdiction over the issues in the case and over the parties in the case. So the issue question is called subject matter jurisdiction, and the parties are called personal jurisdiction. In other words, before bringing a lawsuit, you need to make sure you have chosen a court that has subject matter jurisdiction, the right to make decisions on the issues in the case and personal jurisdiction over the parties, the right to issue an order, or even hear a case related to the parties.
Figuring this out is beyond the scope of this video, but I at least wanted to highlight for you that identifying the right court, a court with subject matter jurisdiction and personal jurisdiction is essential to you being able to proceed with your lawsuit.
Do You Need a Lawyer to Represent Me or Can You File as a Pro Se Litigant?
Well, let’s say you are suing for a thousand dollars and you are going to do that in small claims court or conciliation court. It probably doesn’t make sense to spend $3,000 on a lawyer only to fight over a thousand dollars. So usually, on small cases at a certain size, it just doesn’t make practical sense to pay to have an attorney. But for large cases, obviously it does.
Now, what does an attorney provide, and what are some of the factors to weigh in determining whether it is worth spending money on an attorney? Well, an attorney, first off, is going to be able to help you identify what documents need to be drafted, what information goes in those documents, and the attorney will usually draft those for you. The attorney will also give you an objective view of whether you can actually win the case. There is an old saying that says: An attorney who represents themself has a fool for a client. In other words, if an attorney is representing themselves, they are a fool. Why? What is the meaning behind that saying? The meaning is this. When you are representing yourself, you are not objective about your case. You are biased. You see one side of it, you see the one side of the story, you don’t see the other side, and you don’t see how the judge will look at it.
An attorney is far more likely to be objective and figure out whether you are likely to win and how strong your case is, and how much money it is worth investing in it. Because the attorney, first off, is objective. They don’t have any emotions tied up in the case. Second, the attorney has experience with judges and with these legal issues to determine how does your case compare to others that have been tried before the courts. So if it is a large case over a large amount of money, you need to have an attorney involved. If it is complex, you need an attorney involved. But, typically, there is a gray area of somewhere between, maybe, a thousand dollars and $15,000 or $20,000 where parties might decide to represent themselves, and that is certainly an option. And then, in many states, you can also hire an attorney just for a little part of the lawsuit. So just to help you draft the lawsuit, for example. That is called a la carte legal services, and many states, if not most states, permit you to do that so you can get help for the part you need without the attorney taking the whole case for you.
What Evidence Do You Need to Support My Claims?
Well, you need enough evidence to convince a jury or a judge that your version of events is correct and the other side is wrong. You don’t always have that evidence when starting a case, though. In fact, many times, you know the evidence that exists, but you don’t have it. And that is okay because there’s a process in a lawsuit called discovery. Discovery is the phase where you can ask the other party for evidence, and they can ask you for evidence, and you can also hire an investigator to go out and get evidence. So there is a phase in discovery where you can gather up the evidence. You don’t need the evidence before commencing a lawsuit. You just need to be able to get the evidence before the deadlines in preparation for trial.
What are other dispute resolution options like mediation and arbitration before starting a lawsuit? Well, sometimes parties decide that rather than spending a lot of money and time and stress in a lawsuit, they are going to try to work their dispute out in an alternative manner. This is called alternative dispute resolution. Popular examples are arbitration, mediation, and negotiation. Let’s go through those in reverse order. Negotiation is just where the parties negotiate and see if they can resolve their differences, and if they can, they write it up in what’s called a settlement agreement. They both sign it, and they go their separate ways.
Mediation is where they get a little help with that negotiation. They hire a mediator. That is a person, often a retired judge or an attorney trained in helping parties work through their differences. A mediator doesn’t say you are right and you are wrong. The mediator just tries to help the parties come to a mutual agreement about resolution. So mediation, in a way, is low stakes. You don’t have to worry about getting the mediator on your side. The mediator doesn’t have a side. The mediator’s goal is just to try to help the parties look past the emotions and be realistic about the expense of a lawsuit and say, would it make sense to have some compromise here so both parties can avoid the pain of going to a lawsuit?
Arbitration is kind of like a private lawsuit with a private judge. Instead of going to a public court, you hire either a retired judge or an attorney, typically, who is an arbitrator, and often that arbitrator will have experience in the particular area of the dispute. You hire that person to make a decision like a judge, and you are bound to that decision, just like if it were a judicial decision or decision by a court; at least, that’s typically the case. It is called binding arbitration. Now, there actually is a rare thing called non-binding arbitration. Non-binding arbitration is basically like a charade that the parties both go through. It is a mock trial, allowing the parties to test out their theories and see how it goes. Often prior to a decision, the parties might decide to settle, or the parties might have a decision from an arbitrator in a non-binding arbitration, and then the parties at least know if we tried this case in court, how would it go? Why is this such a rare thing? Because non-binding arbitration doesn’t bind parties to anyone or anything. It takes time, and usually, one party doesn’t want to wait. It also takes a lot of money, and usually, the parties don’t want to spend money fighting before an arbitrator when that decision doesn’t matter. So for that reason, usually, the most common form of arbitration is binding arbitration. And that again means a private judge that you have hired, so it could be an attorney or a retired judge, is going to make a decision, and you are stuck with that decision, and usually, it cannot even be appealed.
Conclusion
All right, so these were some practical tips and some legal considerations in preparing to bring a lawsuit. Hopefully, this is helpful for you in figuring out do you need an attorney or not. What are some of the complexities? How do you start doing some research? Maybe you hop on artificial intelligence and start using some of the keyword words that I presented here and ask artificial intelligence, like ChatGPT, to draft a complaint or what information needs to be in there.
The goal here is to educate you. Though, I highly recommend consulting with an attorney. I would never do surgery on myself. I would hire a surgeon. Likewise, I would never commence a lawsuit as a non-attorney without hiring an attorney. It is kind of like me working on my car. If I have went up and start moving things apart and taking out parts of the engine, I am just asking for trouble, and I will tell you, I truly believe that you are going to be best served having an attorney review your case, figure out your options, put together a strategy and work with you on that. If you have questions about how to find a good attorney and what are the factors to consider, I have got a link in the description below, and that will help you find a good attorney in your area who will represent your best interests.
The purpose of this YouTube channel is to provide free educational information to empower you, help you avoid problems in your business, and help you to grow a great successful company. If you are a business owner and you don’t yet have my free handout, Seven Common Legal Mistakes Made by New Businesses, feel free to get it. It is at aaronhall.com/free. Not only will you get the free PDF, but you will also get some weekly videos that explain in video form from me how to put that PDF into action. By the way, I am not selling legal services. I would encourage you to work with an attorney in your state, but the videos I put out will give you the topics to discuss with the attorney, the questions to ask, and help educate you to empower you to avoid problems in your company.
If you like this video, feel free to indicate that. If you want to subscribe to get more videos like this, you are welcome to subscribe to this channel. The next video that I am putting out is, When Is It Okay to Represent Yourself in Court? We touched on that a little bit today, but we are going to go into it much deeper. And if you are representing yourself in court, that will be a great video to watch. So if that video has already come out, you can click on the link in the description below to see it, and if it hasn’t come out yet, be sure to subscribe, and then you will receive notice when it does come out.
I am Aaron Hall. I am a licensed attorney in Minnesota. I represent business owners and entrepreneurial companies, helping them avoid problems in their company, and then occasionally if there is a lawsuit or some sort of government investigation, I am helping them navigate those difficult issues. If you have questions on the video topics today, feel free to put them in the comment section below. I will either provide an answer there or use your question to produce videos in the future. I look forward to seeing you at the next video.