THL – TorHoerman Law

How to File a Lawsuit: A Comprehensive 10 Step Pre-Trial Guide


How to File a Lawsuit in 10 Steps

how to file a lawsuit

This “How to File a Lawsuit” guide will break down the process of what needs to be accomplished to file a civil lawsuit step-by-step. This can be a complex and difficult process, so be sure to consult with an experienced civil lawyer before filing.

If you have any questions about filing a lawsuit, you can contact the offices of TorHoerman Law at any time for a free no-obligation consultation.


How to File a Lawsuit?

1. Consult With Potential Representatives For Legal Advice.

Before anything else, it is important that you consult with an attorney about your potential lawsuit. You need to be sure that you have a valid case so that you do not waste your own time and resources filing a case that is unlikely to be successful or a case that is unlikely to make it to trial. An experienced civil lawyer will help you to determine the strength of your case.

You should also be sure that your case falls within the state’s statute of limitations. Ask a legal representative to be sure that you are filing the case within the appropriate time frame.

Consultations are confidential, so don’t withhold information about your case from an attorney. It is best to share all the information that you have about your case during a consultation because it gives your potential attorney a better understanding of the case. An open and honest consultation will give you the most accurate prediction of the outcome of your case.


2. Hire an Attorney.

Once you have consulted with an attorney and determined that you have a viable claim, you should choose an attorney that will help to answer your “how to file a lawsuit” questions and will represent you in court. There are a number of factors that go into choosing an attorney, but the most important is selecting an experienced attorney who has tried similar types of cases before.

Say that you are involved in a car accident and want to file a car accident lawsuit – you should hire an attorney that has experience with handling car accident lawsuits. Or maybe you had a slip and fall accident inside of a private business – you would want to seek legal counsel from an experienced slip and fall lawyer.

Although you may feel uncomfortable asking, remember that it is entirely within your right as a potential client to ask a potential attorney if they have experience trying similar cases.


3. Find the Right Court to File the Lawsuit.

Choosing an appropriate location for your lawsuit requires legal analyses and knowledge of the relevant rules for the courts in your area. This step should be taken with an attorney. You and your attorney must find a court that fits multiple criteria before filing your case. The court must have personal jurisdiction over the defendants involved, subject matter jurisdiction over your case-type, and it must be located in the appropriate venue.

  • Personal Jurisdiction – For a court to have personal jurisdiction over a defendant, the individual or company must have an appropriate relationship to the forum county or state or federal district and the defendant must be served properly. Simply put, this means the person or company you are suing must be involved in activities in the forum and receive notice that a suit has been filed in which the individual or company has been named as a defendant.
  • Subject Matter Jurisdiction– Depending on the type of lawsuit you are filing, your case may be heard in either a federal or state court. If your claim falls under federal law, such as civil rights or constitutional issue, your case will likely be heard in front of a federal judge. If you claim falls under state law, such as auto accidents or trespassing claims, your case will likely be heard in front of a state-level judge. The court in which you choose to file your case must be able to handle the subject matter of the case. For example:
    • If the case has to do with constitutional law, you will need to file the lawsuit with a federal court. If your lawsuit has to do with family law, you will need to file the case with a state or regional family court. If you are filing an appeal, you need to file with an appellate court. If the disputed amount is under a certain monetary figure, you would file in small claims court. etc.
  • Venue — Your case must be filed in an appropriate court based on proximity to where the incident in question occurred or where the parties are located. In most cases, the lawsuit must be tried in the same district in which the incident in question occurred. So, say that you were injured in a personal injury accident, you will likely have to file the lawsuit in the district where the injury occurred. However, if you were injured by a bad drug, you will likely have to file suit in either the district where you reside or in the district where the manufacturer is located.


4. Draft and File the Complaint. 

After choosing the appropriate court for your case, your attorney will draft the complaint. This is a formal document that is served to the defendant and filed with the court. The complaint informs the court of the parties involved in the lawsuit, an outline of the incident in question, the cause of action for the complaint, and all of the claims made against the defendant. The complaint generally contains an explanation for why the court holds jurisdiction over the case as well.


5. Serve the Defendant.

Once you have filed the complaint with the court, your complaint along with a court-issued Summons to Appear must be served to the defendant or defendants. The Summons to Appear informs the defendant that a legal claim has been filed against the defendant.

Generally, there are two options for serving the defendant.

  1. Serve by Mail — Some states will allow the plaintiff to serve the defendant through the U.S. Postal Service. You will need a receipt to prove to the court that you sent the Complaint to the defendant’s active address in a timely manner.
  2. Personal Service — Other states do not allow the plaintiff to use the “service by mail” option. If this is the case, then an adult must hand-deliver the Complaint to the defendant. The messenger, known as a process server, must then fill out an affidavit describing the service.


6. File the Certificate of Service.

You or your attorney will also need to provide the court with a Certificate of Service. The Certificate of Service is a formal document filed with the court that acts as sworn testimony and confirms that you, the plaintiff, sent the defendant a Summons to Appear and a copy of the Complaint. It also provides the details of how the defendant was served.

Some courts require that you file the Certificate of Service / Proof of Service after you have served the defendant.


7. Begin Discovery.

After all the named defendants have responded to the formal Complaint, the next step is discovery.

During discovery, both parties conduct investigations, depose all parties involved, collect witness testimony, seek testimony from expert witnesses, and compile evidence to support their arguments. Discovery files are documented and shared between the prosecution and defense teams.

A more expanded explanation of discovery can be found in our Civil Lawsuit outline.


8. File Pre-trial Motions.

After discovery has closed, and before a trial begins, all other pre-trial issues will need to be addressed. These issues will be addressed through pre-trial motions. In most cases, attorneys from both sides will file pre-trial motions to have certain evidence and testimony removed from the hearing.


9. Opportunity to Settle. 

It is important to keep in mind that far more lawsuits settle than go to court. Sometimes a case will be settled before it gets to trial.


10. Begin Trial.

If the parties fail to settle the case, then after all pre-trial motions have been filed, the trial will officially begin.

Opening statements will be made, experts and witnesses will be introduced, examined and cross-examined, arguments will be heard from both sides, and a judge or jury of peers will decide on the case.

For a more in-depth description of the trial, visit our civil lawsuit guide.

No Comments Posted

Leave a Reply

Your email address will not be published. Required fields are marked *

« Read more related news

Filter News

No-Obligation Free Consultation

Contact us by phone at 1-888-508-6752 or email us below.