In theory, filing a personal injury lawsuit isn’t difficult. The basic idea of the lawsuit filing process is straightforward: to inform both the court and the defendant (the person you're suing) of the basis for your case, in a timely manner. In practice, it's not easy for non-lawyers to know what to expect. In this article we'll explain the basics of filing a personal injury lawsuit. Some of the finer details may vary based on which court you’ve chosen and what state you’re in, but the basic concepts will be universal.
A personal injury lawsuit begins by filing a set of documents with the court, and serving those papers on the defendant.
To explain the basis for your lawsuit, you will need to prepare and file a complaint (sometimes referred to as a "petition"). The complaint is a formal legal document which identifies the legal and factual basis for your personal injury lawsuit.
The beginning of the complaint will identify you (the plaintiff), the defendant, and the court you're filing your lawsuit in. This part of the complaint is called the "caption."
The next section will consist of numbered sentences or paragraphs that explain the court’s jurisdiction to hear the case, identify the legal theories (i.e. negligence) behind your allegations, and state the facts related to your lawsuit. You will also need to explain in your complaint what relief you’re seeking, including the amount of money you’re demanding from the defendant (damages).
The last part of your complaint will contain your signature (or the signature of your attorney if you have one).
Many jurisdictions also require you to file a summons, a document that identifies the parties to the litigation and explains to the defendant that they are being sued. The summons also usually contains a signature of the court’s representative (often the clerk of court) and the seal of the court.
In addition to filing the summons and complaint, you will need to pay a filing fee. This exact amount varies widely depending on the court and type of lawsuit, but is typically between $100 and $400.
After you file the complaint and summons with the court, you need to serve a copy of each on the defendant. This is absolutely critical because without proper service, the court will not have jurisdiction over the defendant. And without jurisdiction, the court can’t impose any judgment.
"Service of process" is the legal term for serving the defendant with the summons and complaint. Service of process is completed when the defendant (or a representative of the defendant) receives a copy of these documents.
Generally speaking, anyone who is not a minor and not a party to the lawsuit may serve the defendant. Most of the time, professional process servers, court officials, or law enforcement officers complete service of process. Service can also take place through U.S. mail in some jurisdictions, although proof of receipt by the defendant is typically required.
Service of process must take place within a certain time limit, commonly 30 days after you filed your complaint and summons with the court. But if you have trouble serving the defendant, the court will almost always grant time extensions, as long as you’re taking reasonable steps to find and serve the defendant.
You need to get your personal injury lawsuit filed before the statute of limitations deadline expires. A statute of limitations is a law that limits the amount of time that may pass before a lawsuit must be filed. Every state has its own deadlines for different kinds of cases, but a two-year time limit is common for personal injury cases among the states.
The statute of limitations "clock" begins when your personal injury occurs, when you discover your injury, or when you should have discovered your injury. If you do not file your lawsuit before the statute of limitations expires, you are permanently barred from ever bringing that lawsuit in court.
You may find yourself in a situation where the statute of limitations deadline is about to pass, but you don’t have enough information to prepare and file a complaint. In this situation, there may be alternative court documents you can file to protect your right to sue.
In some states, if your lawsuit concerns an injury caused by the negligence of a professional, such as a doctor, you need to file an additional document -- often called a Certificate of Merit, Affidavit of Merit, or an Order of Proof -- with the court. Learn more about the Affidavit of Merit in Medical Malpractice Cases.
After you file your summons and complaint with the court, and serve those documents on the defendant, the next step is for the defendant to respond to your complaint. This occurs in two possible ways.
First, the defendant can file an "answer" to your complaint, in which the defendant responds to each of your numbered allegations in the complaint and either admits or denies each. Alternatively, the defendant can state that it can neither admit nor deny the allegation.
Second, the defendant can file a motion to dismiss. If the court grants this motion, the court can throw out your entire complaint or just a portion of it.
Learn more about the timeline of a personal injury lawsuit.