Filing a lawsuit
Pleadings refer to the legal papers filed in a court of law. The filing of the legal papers in the court marks the beginning of a lawsuit. Here are some of the terms you should be familiar with. The exact term may vary from state to state.
The petition is also commonly referred to as the compliant. A civil suit typically is formally initiated with the filing of a legal document known as a complaint. The primary purposes of the complaint are to give the defendant notice and inform the person or organization of the nature and basic facts of the case. A complaint states the specific claim(s) against the defendant, the basis on which the court can exercise jurisdiction over the case, the basic facts, and the particular relief sought (which need not be stated in specific dollar amounts but instead can indicate the type of damages requested, such as punitive and actual). It is the formal declaration of all the general allegations of injury that the plaintiff will endeavor to prove were caused by the defendant.
The complaint will also contain a statement of the court’s jurisdiction in the matter. It also constitutes a formal request to the court to readdress under the law in the form of a judgment for the plaintiff. There will be a demand for remedy, usually money damages in a specific amount.
Summons and Service
Once the complaint has been filed, the court clerk will issue a signed summons with the seal and name of the court. A summons lists all parties in the lawsuit and the court of jurisdiction in which the case will be tried. It informs the defendant that he or she must respond to the complaint within a specified period of time. It summons the defendant to appear and defend him or herself.
A copy of the complaint and the summons is served on, delivered to the defendant. This is service of process. The court must have proof that the defendant has been officially and legally notified of the lawsuit and the defendant’s need to respond to it. Only then will it exercise jurisdiction over the defendant. Service of process also gives the court personal jurisdiction over the named defendant. The complaint and summons must be served together in person by an individual who is not a party to the suit and who is at least 18 years of age. Service can also be made under certain conditions by a U.S. marshal, deputy marshal, or other person specially appointed by the court for that purpose. Personal (i.e., in-hand) service to the named defendant is known as actual service. It is usually not necessary that the defendant be served so long as a “person of suitable age and discretion” within the dwelling is handed the copy.
The next typical step in a civil suit is the filing of an answer by the defendant. Under the federal rules, a defendant generally has 20 days from time of service to file an answer or other appropriate pleadings. If the defendant is in the United States or a federal officer or agency, the maximum time for an answer is 60 days. Similar time constraints apply in most state courts, although the periods vary among states. In most states, the defendant has 30 days to answer the claim.
The defendant has a host of options in answering the plaintiff’s complaint. These options are generally not mutually exclusive and thus can be used alternatively or in combination. The primary purpose of the answer, also called the defendant’s responsive pleading, is to counteract the plaintiff’s allegations. In other words, the defendant should demonstrate why the plaintiff should not prevail. The defendant can also enter various denials, plead an affirmative defense, and even file a counterclaim, asking for damages from the plaintiff or other individuals or entities. The defendant can also move a motion to dismiss based on some of the defenses.
The counterclaim is simply a claim made by the defendant against the plaintiff, which, if proved, could cancel or decrease the amount of damages to which the plaintiff would be entitled. Counterclaims can be filed with the answer or as a separate document.
Reply to Counterclaim
If a counterclaim is filed, the plaintiff is generally required to respond in the same manner as any defendant would to a claim and thus must follow the usual procedural rules.
Cross claims can arise when there are multiple defendants or plaintiffs in a lawsuit, and two or more of them have their own disputes arising out of the same occurrence that has resulted in the lawsuit. For example in an accident involving multiple vehicles, if Tom and Harry are being sued by Jack, Harry can file a cross claim against Tom in the same lawsuit filed by Jack.
Answer to the Cross Claim
The person against whom the cross claim is made must answer the cross claim. The answer is in the same format as the answer to a complaint.
Third party complaint
The defendant can pass off his or her liability to another party or person. In such cases, the defendant can file a third party complaint against such party or person and such party or person must be made party to the suit. The contents of the third party complaints are similar to the complaint.
Answer to third party complaint
The person or party against whom the third party complaint is made must answer the cross claim. The answer is in the same format as the answer to a complaint.