See Anatomy of a Personal Injury Case #1; Pre-Suit Investigation, on this web site.

Once your lawyer has accepted your case, determined who the defendants will be, and conducted sufficient pre-suit investigation, it is time to file a lawsuit and begin legal proceedings. Litigation in every state, and in the federal courts, are governed by relatively uniform Rules of Civil Procedure. The initial document in every lawsuit is the Complaint. Every Complaint must contain at least three elements: (1) identification of the parties, and the counties within which they live; (2) a concise description of the events given rise to the lawsuit, sufficient to apprise the defendant as to why he is being sued; and (3) a demand for relief, which in a personal injury case will generally be monetary damages. Under the Rules of Civil Procedure, the description of the case in the Complaint should be brief. While in some litigation involving complex issues of law or requests for injunctive relief, a Complaint may be lengthy, the Complaint in even a catastrophic personal injury case may be only a few pages long.

The Complaint, signed by plaintiff’s lawyer, is filed in the civil clerk’s office in the appropriate court, accompanied by a filing fee. The plaintiff can file the lawsuit in the county in which he lives or the county in which any defendant lives or does business. Choice of county may be significant, as jurors in some counties may be more favorable to plaintiffs than jurors in other counties. Once filed, the Complaint is served on the defendant along with a summons. Service is usually accomplished by a deputy sheriff in the appropriate county. The summons is a simple legal document with important legal impact. It informs the defendant that a lawsuit has been filed against him and that he must file a response with the court within twenty days or else risk default. Service is most commonly made by the deputy sheriff handing the Complaint and summons to the defendant or leaving it as his last known residential address. After service, the sheriff sends the court his certification that service has been made. The lawsuit has now begun.

The Rules of Civil Procedure gives lawyers extensive tools, known as “discovery,” with which to learn the facts necessary to prepare a case for trial. The most common discovery tools are interrogatories, requests for production of documents, and depositions. Depositions and requests for production of documents will be discussed in subsequent installments of this series. Interrogatories are written questions that each party can serve on every other party, and which the parties are required to answer in good faith. Unless the court authorizes additional interrogatories, every party can ask of every other party, thirty questions. Interrogatories are both a powerful and limited tool. They are very useful in learning basic facts, such as a defendant’s available insurance coverage, the identity of potential witnesses known to the defendant, general background, and other “solid-fact” based questions.

The limiting factor of interrogatories are that the answers are drafted by the defendant’s lawyer, not the defendant, and there is no immediate follow-up to the answers that the defendant provides. It is my practice never to ask the defendant to tell his version of events in his answers to interrogatories. Such questions provide the defendant’s attorney, at the earliest stage, to describe events in a light most favorable to his client. I prefer to leave questions about what happened, and other questions regarding the defendant’s liability, to the defendant’s deposition. As will be further explained in the installment on depositions, the defendant at a deposition must answer the questions posed by plaintiff’s counsel directly. Moreover, the defendant does not get a disclosure as to the questions that he will be asked, and plaintiff’s counsel can follow up promising leads promptly and from various angles. Despite their limitations, interrogatories are a basic piece in the early preparation of most serious personal injury cases.