How to start lawsuit?
Published 05 Aug 2016
A lawsuit is commenced by the filing of a complaint in the appropriate court. The plaintiff states in the complaint the following:
- a) personal information about himself and the defendant;
- b) the wrongful act or omission committed by the defendant in violation of the rights of the plaintiff;
- c) and the relief prayed for. At this point, it is required that the plaintiff must be able to comply with the procedural and substantive requirements in filing a lawsuit, otherwise, the suit will fail and the case will be dismissed, subject however to the right of the plaintiff to re-file the complaint after the defect has been remedied.
Procedural requirements pertain to the filing of the complaint in the proper court which has the jurisdiction over the complaint. Substantive requirements mean that, on the basis of the allegations in the complaint, the plaintiff must be able to prove that he has the right to file a suit against the defendant.
Simultaneous with the filing of the complaint in court, the complainant is required to serve to the defendant of a copy of the complaint. Upon the filing of the complaint, the court shall serve the defendant summons requiring him to answer within a specific period. Service of summons to the defendant is essential for the court to acquire jurisdiction over him, otherwise, the decision will not be binding on him.
Upon receipt of summons, defendant has two options. He can file a motion to dismiss on the ground that there is no cause of action or that the plaintiff has no capacity to sue or that the plaintiff’s claim has been paid or waived. If the court finds in favor in favor of the defendant, the case may be dismissed. Dismissal, however, is not a final adjudication of the rights of the parties. Or, the defendant may also choose to file an Answer to the complaint where he can deny the allegations in the complaint and present contrary evidence
After all, pleadings have been filed, parties may avail of the different forms of discovery that can aid in the resolution of the case. Under the Federal Rules of Evidence, one party may obtain from the other information about all witnesses, documents, and any other information pertinent and relevant to the case. This is required since knowledge of the evidence of contending parties may encourage them to settle amicably. Moreover, it helps in expediting the trial of the case and avoids the practice among litigants of surprising the other parties during trials of any evidence. Failure to comply with requests for discovery of either party may result in either the dismissal of the complaint or the declaration of the judgment of default against the defendant. The dismissal or the adjudication of default is not a final determination of the rights of the parties and the case can be re-filed.
If based on the pleadings presented and it appears that there is no genuine issue as to any material fact, then the plaintiff or the defendant may move for summary judgment by presenting supporting affidavits, depositions or admissions. Subject to the right to appeal, the summary judgment can be a final determination of the rights of the parties. If the motion is denied, the party filing the motion cannot appeal as this is not a final order.
If based on the allegations in the pleading there are genuine issues which must be determined in court, then trial shall proceed. In this situation, the court shall require the parties to present evidence in court. Witnesses may be required to attend. After all the witnesses have been presented in court, the counsel for both parties will be given the opportunity to address the jury. This is the counsel’s opportunity to convince the jury that they are entitled to the relief prayed for.
After the summation, the jury deliberates and renders the verdict. The court then renders judgment in accordance with the verdict. If the judgment is in favor of the plaintiff then he may be adjudged by the court to be entitled to the relief prayed. If the judgment is in favor of the defendant, then the case may be dismissed and any relief asked may be awarded to him. However, the court is given the authority to render a judgment contrary to what has been decided by the jury if the verdict is contrary to law. In this situation, the court may set aside the verdict and render a judgment notwithstanding the verdict.
The losing party is given the opportunity to file an appeal with the proper court and within the proper period after the judgment has been rendered. If the losing party fails to file an appeal within the proper period the judgment becomes final and the winning party may ask the court for execution of the judgment. At this point, it can be said that there is a final determination on the case.