GETTING YOUR LAWSUIT STARTED
FILING A LAWSUIT
Personal injury lawsuits are commenced by the Plaintiff filing a complaint in court against one or more Defendants. The filing of the complaint is the first step the Plaintiff must take towards receiving an adjudication of his or her personal injury claims. After the lawsuit is filed, the legal process that the parties engage in to resolve the claims at issue in the case is known as litigation.
The Arizona Rules of Civil Procedure state that “A civil action is commenced by filing a complaint with the court.” Ariz. R. Civ. P. 3. In a personal injury lawsuit, that complaint should contain one or more “claims for relief” from the court. The “claim for relief” is what the plaintiff is asking the court to do. In a personal injury lawsuit, the plaintiff should ask the court to award damages to compensate the plaintiff for the harm that the defendant(s) negligently caused the plaintiff to suffer. The rules for stating a claim for relief are fairly simple. Rule 8(a) of the Arizona Rules of Civil Procedure states:
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction…;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought…
Ariz. R. Civ. P. 8 (a)
These pleading requirements can usually be satisfied with just a few sentences. Therefore most complaints are relatively brief documents. The complaint must contain sufficient detail to give the defendant(s) fair notice of the nature and basis of the plaintiff’s claims, but that is a low, easy-to-satisfy, threshold.
SERVICE OF PROCESS
After you file your complaint, you must “serve” it on your defendant(s), along with a “summons” from the court that commands them to appear and answer the allegations that the plaintiff made in his or her complaint.
Service of process is necessary to satisfy the due process requirements imposed by constitutional law and common law. The court is not deemed to have jurisdiction over the defendant(s) unless or until the defendant(s) have been properly served. That is because the service gives them notice of the claims that have been made against them. Due process requires this notice because it would not be fair for the court to enter judgment against the defendant(s) without first giving the defendants an opportunity to defend themselves against the allegations made against them.
Service of process is generally accomplished by a registered process server who accomplishes the service by physically handing the documents to the defendants or some other member of the defendants’ household, or if the defendant is a corporation, the service may be accomplished by serving the documents on a designated corporate representative.
If it appears that a defendant is deliberately avoiding service of process then the court can allow for service to be accomplished by some alternative means, which may include mailing or publication.
After service of process, the Defendant(s) are generally required to file an “answer” to the lawsuit within 20 days. In their answer, the Defendants are required to admit or deny the allegations of the Plaintiff’s complaint.
In its answer, the defendant may also assert affirmative defenses. If proven, an affirmative defense will negate the defendant’s liability. I noted earlier that the plaintiff bears the burden of proof in a personal injury claim, but there is an exception to that rule that applies to affirmative defenses. If a defendant asserts an affirmative defense, then the defendant bears the burden of proof as to that defense. For example, a defendant may raise the statute of limitations as an affirmative defense. In that case, the defendant would bear the burden of proving that the plaintiff’s claim was barred by the statute of limitations.
The philosophies, strategies, and tactics I’ve outlined above are the principles that guide our actions at Cluff Injury Lawyers. I’ve outlined them pedagogically to help anyone who wants to better understand these principles or improve their skills in utilizing them.
Author: Brigham Cluff