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Things To Know Before You File A Lawsuit

Things To Know Before You File A Lawsuit

Before you file a lawsuit

You’ve been to your local law library, done your research, learned the elements of your civil claims, and you have determined that you have good cause to file a lawsuit against someone.  However, properly alleging the claims of a civil lawsuit is not always enough.  Certain situations require additional hoops to jump through.  Sometimes a state will have specific rules that may apply to your case.  Here are some of the most common rules you need to look out for before filing a civil lawsuit.  Not all states have the same rules and the specifics of each rule will vary from state to state.  You should be sure to double check that each of these issues do not apply to your specific claims in your state.

Statue of Limitations

All civil lawsuits have a certain time period in which they must be brought.  These time limits can vary considerably from state to state.  For example, if you want to file a personal injury lawsuit in California, you must file the lawsuit within two years of the date you were injured, whereas Tennessee has only a one year statute of limitations for personal injury claims.  Generally, breach of contract cases have a much longer statute of limitations period, with six years being common in many states.

Whatever type of civil claim you intend to file, make sure you research your state’s statute of limitations period for that type of claim.  Conversely, if you are a defendant in a lawsuit, make sure the plaintiff has filed their complaint within the statutory period.  If they have not, you should allege as much as an affirmative defense in your answer and/or file a motion to dismiss the lawsuit.

Tort Claim Notices

If you are suing any type of state or local government body in state court, it is likely that you may have to file a Tort Claim Notice before you can actually file your lawsuit.  The time to file a tort claim notice in most states is much shorter than the normal statute of limitations (although once you file the notice, you will likely have the rest of the statute of limitations period to file your claim). 

In Oregon, for example, if you intend to sue a state or local government agency or employee in state court, you must file the lawsuit within six months (regardless of the actual statute of limitations) or send a letter to the government agency informing them that you may bring a lawsuit against them within 180 days.  In the letter, you must briefly describe the events, how you have been harmed, and why you think the government body is liable.  You must put the government on notice that you intend to sue.  After you have given proper notice, you will then have the full statutory period in which to bring your claim (such as two years for a personal injury lawsuit).

If you think you might need to sue a state or local government for claims arising under state law, make sure you follow all the necessary tort claim notice laws in your state.  Note that, these types of notices only apply to state law.  If you are suing a state or local government for violation of your federal civil rights in federal court, you do not need to send them a tort claim notice.

Residential Contractors

If you are suing a contractor for work done on your home, you may have to give them proper notice of your intent to file a lawsuit before you actually file a complaint.  Many states require you give the contractor an opportunity to repair any alleged deficiencies in their work before you can file a lawsuit.

Mandatory Arbitration

If you have a written contract with someone, you must check the terms of the contract and make sure you have not agreed to a mandatory private arbitration program.  If you have, you will be required to go through that process instead of (or at least before) filing in civil court.  Some mandatory arbitration clauses state that the arbitrator’s decision is binding, whereas some will claim that arbitration (or mediation) must be held before you can file a lawsuit.

In addition, some state courts have mandatory arbitration programs that take effect after a lawsuit is filed, meaning that your lawsuit will be referred to a private arbitrator who will decide the case.  If you disagree with the arbitrator’s decision, you can usually appeal to the trial court and conduct an actual trial.

 In the event you enter private arbitration, the forms and guides on this website will still be quite useful, as any such arbitration will certainly involve stating the elements of your claim, discovery, evidence, and witness testimony, the processes of which will all be based on state law.  The arbitrator may not be legally required to follow the state rules of evidence and procedure, but it would be extremely unusual for them not to use them as guidelines during the arbitration.

Conclusion

These are just some of the issues a person needs to be aware of before they proceed with a civil lawsuit.  Properly researching the elements of your civil claim before you file will ensure that your claims move forward without undue delay.