The term "lawsuit" usually refers to a proceeding in court wherein someone who has a claim is allowed to present their claim to the court. If the person who has a claim is entitled to win, a judgment by the court is entered against the defendant. A lawsuit is started by the filing of two documents, listed below.
The First Document in Filing A Lawsuit
The first document is called a complaint. A complaint is prepared and filed by the person making the claim. This person who files a complaint is called a "plaintiff". The person against whom the lawsuit is filed is simply called the defendant.
The complaint is simply a written document wherein the claimant, or the "plaintiff" sets out in detail the reason they are suing. In personal injury cases this reason is usually that the defendant, the party being sued, has failed to act as a reasonable and prudent person and, as a result they were injured. The complaint includes of course the name of the plaintiff, the party suing and the name of the defendant, the party being sued.
The complaint will then set out the facts which form the basis for the complaint. An example would be a person who was injured in a motor vehicle collision caused by the failure of the other driver, the defendant, to obey a stop sign. The complaint will state that the defendant violated the stop sign and caused a collision which resulted in personal injuries to the plaintiff.
The complaint will then ask for relief, that is, the action the plaintiff wants the court to take. In personal injury cases this would be a complaint for money damages or a sum of money to be paid by the defendant to the injured party, the plaintiff.
The Second Document in Filing A Lawsuit
The second document necessary in order to file a complaint is called a summons. Simply put, a summons is a directive or order by the clerk of court which summons the defendant to appear in court and show cause, if any there be, why the plaintiff is not entitled a judgment in the plaintiff's favor.
This summons is signed by the clerk of superior court or one of the clerk's deputies.
The summons is a formal court document which, in effect, starts the lawsuit.
The original complaint and a copy of the summons is placed in the official court file. This file will be the repository of all documents which will be filed in the "cause of action" which is usually referred to as the lawsuit.
The original summons and a copy of the complaint is then served upon the defendant by the sheriff of the county wherein the defendant lives. The sheriff will deliver a copy of the summons and a copy of the complaint upon the defendant.
The sheriff will then mark upon the original summons the fact that he served the complaint by personal service upon the defendant. The sheriff will mark the date upon which the summons and complaint are served upon the defendant.
The sheriff will then return the original summons which includes the sheriff's proof of service to the court for filing.
The defendant will then have 30 days after service to file a response to the lawsuit.
If you have any questions about how a lawsuit is filed or if you need help with your personal injury claim please call Brent Adams and Associates at 910-888-8888. We answer questions like yours every day and we would be happy to hear from you.