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What You Need to Know About Filing a Personal Injury Lawsuit

If you’ve been injured through someone else’s fault and haven’t been able to recover fair compensation for your injuries, filing a personal injury lawsuit against the other party may be your only option. A lawsuit is a complex and adversarial process for determining the facts of a case and how the law applies to those facts. Here we’ll go over what you need to know about filing a personal injury lawsuit.

However, if you are considering filing a lawsuit, it’s important to consult with at least one attorney first. Because of its complexity, it is easy to make a mistake that can lead to you recover less in damages, have your case dismissed, or even a lawsuit against you.

Timing

There’s a strict time period to file a civil lawsuit established by the statute of limitations.  In California, the statute of limitations for most (but not all) personal injury claims is two years. That means a plaintiff must file their lawsuit within two years of the date of their injury. If the time limit is two years and you file a claim after two years and one day, the claim will be dismissed.  However, some claims are on “toll” or on pause. For example, if the plaintiff is in a coma for three years following their injury, the statute of limitations period begins running when they wake up.

Venue and Jurisdiction

It’s not always obvious where a lawsuit should be filed; a plaintiff may have multiple options. They must consider factors related to jurisdiction and venue. Jurisdiction refers to the power of any given court to hear a case. For instance, suppose a plaintiff is a California resident and gets into a car accident in Nevada with a Nevada resident. 

In that case, three separate court systems potentially have jurisdiction over the case: 

  • California state courts
  • Nevada state courts 
  • Federal courts (which have the power to hear cases between residents of different states)

Plaintiffs and defendants may prefer to be in one jurisdiction over another for various reasons, from the rules of procedure to the judges likely to hear the case. Venue is the choice of location within a court system. In the example above, if the plaintiff wants to file their lawsuit in a federal district court, they have a choice between the federal court in Las Vegas or one closer to their home in California.

Bear in mind that the issues of venue and jurisdiction are just about where the proceedings will take place; the question of what laws apply is a separate issue.

Filing the Lawsuit

To officially initiate a lawsuit, a plaintiff must draft a document called a “complaint.” The complaint contains:

  • A statement of facts that supports a cause of action.
  • A demand for judgment for relief.
  • The number of monetary damages sought.

The plaintiff must serve one copy on the defendant and another copy to the courthouse.

They must also file a proof of service of the defendant’s copy with the courthouse. The defendant then has a set amount of time (30 days in California) to respond to the complaint in the form of either a “demurrer” or an “answer.” A demurrer is an objection to the complaint, e.g., that it does not establish subject matter jurisdiction or fails to state facts sufficient to constitute a cause of action. An answer will likely deny some or all of the facts but does not challenge the complaint itself.

If a demurrer is successful, the judge will dismiss all or parts of the complaint. This dismissal can be with or without prejudice; a dismissal with prejudice means the plaintiff cannot try again.

Before Filing, Speak to an Attorney

Filing a lawsuit means stepping into a world full of complex legal rules that take years to learn. An innocent mistake can cost you your entire case and any hope of recovering damages. If you are even considering filing a lawsuit, consulting with an attorney is your best option. Contact us today to speak to an experienced personal injury claim attorney.

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