Tara Burd San Diego Civil Litigation Attorney | A Basic Understanding of Step 1 to Filing a Lawsuit

Tara Burd

See My Who IsTara Burd San Diego Civil Litigation Attorney said, “When a person is harmed, often the only sensible means by which he or she can be made whole is to initiate legal proceedings against the wrongdoer.”

Under most circumstances, legal proceedings begin once official documents are filed with the Court.  San Diego Litigation Attorney Tara Burd clarifies, “It’s not always obvious in which court to bring an action. Some claims are better suited for small claims court. For other claims, a plaintiff may need to decide whether to file in Federal Court or if Federal Court even has jurisdiction over their claims below.

The first document that must be filed is known as the complaint. The complaint sets out the plaintiff’s assertions, names liable parties as defendants, and lays out the factual and legal bases for the plaintiff’s claim. Drafting the complaint must be done carefully, as it sets the tone for the legal proceedings to come and is often the sole means by which the court determines whether there is any merit to the plaintiff’s case. In California courts, we have what is known as “fact pleading.” Fact pleading, in contrast to notice pleading in federal courts, requires that you allege specific facts for each element of every cause of action in your complaint. That means that in a complaint alleging negligence, you cannot merely state “Person X was driving the car that hit my car and caused me to incur medical bills.” You must clearly allege facts concerning the other driver’s duty, the breach of that duty, how that breach was the cause in fact and the proximate cause of your injuries, and the manner in which those injuries caused you to sustain damages.

The complaint must comply with the rules of the court in which it is being filed, and the drafter must ensure that the proper format is used and the proper information is supplied. A link to the applicable rules can usually be found on the county court’s website. Many of these rules are simple, and your common sense will lead you in the right direction. However, some rules may elude your common sense inclinations. For instance, just over a year ago, complaints were required to be filed on certifiably recycled paper. That rule has since been repealed, but my point is that similar rules still exist on the books, and failing to heed them may lead your complaint to the “rejected” box.

In addition to filing the complaint, California courts require the Plaintiff to file a Summons and Civil Claim Coversheet. Both forms can typically be found on your county Court’s website. These additional forms are incredibly important, because without all three forms being filed, the party you are opposing is not required to file a response (or, in other words, “Answer”).

The Civil Claim Coversheet is a form that the courts use to classify your complaint and as a source of statistical data. It is a “check the box” form, and can be completed quickly and often without the need of assistance.

The Summons acts as an official notice to the parties you have named as defendants that they are being sued. Again, it is imperative that you know the court rules concerning providing notice to parties you are suing. While the Summons acts as an official notice, some types of suits require providing the parties you are suing additional time prior to filing the complaint. For example, in suits against “health care providers,” the California Code of Civil Procedure may require you serve notice to the parties you are opposing a full 90 days before filing the complaint. Be sure you understand these rules before filing because there are consequences (known as “sanctions”) that you may face for failing to provide proper notice, among other things.

Some plaintiffs may even be able to avoid the foregoing obstacles by bringing their claims through specially designated procedures.  By way of example, Tara Burd states that “[i]t is very easy for an unpaid employee to file a claim with the Labor Commissioner and avoid the costs and requirements of an action in Superior Court.”  However, while bringing a claim with the Labor Commissioner may be easier in some actions, an aggrieved employee may also fail to identify all relevant causes of action.

The bottom line is that it’s not always easy to get one’s case before the court. Before starting a battle without an attorney, seek consultations and do due diligence to be sure you’re in the proper court and following the proper procedures.

For more information visit Tara Burd’s Who Is Page here in the Journal

San Diego Civil Litigation Attorney Tara Burd
You may contact her at her office
T.Burd Law Group
945 Fourth Ave., #307
San Diego, CA 92101
Or by telephone 858-215-2873

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