Q. I have retained a lawyer to represent me for injuries I received in a car accident. My lawyer has informed me that after I complete my treatment, he will proceed with filing a civil Complaint against the other driver. What is a Complaint?
A. You are what the law calls a plaintiff in a civil lawsuit for damages arising out of your automobile accident. Before filing a civil action against the responsible driver, referred to as the defendant, your lawyer will want to make sure you have completed your treatment so that he/she can have a good idea about your damages before filing the Complaint.
Statue of Limitations – Must File Complaint Within Prescribed Time Limit
Your lawyer must file a Complaint within your state’s prescribed statute of limitations (usually either one or two years from the date of your accident) otherwise you risk losing ALL your rights to legally proceed against the defendant for the damages you have sustained in the accident. This is why it is always a good idea to retain your lawyer as soon as possible – but in no even should it be later then one year.
Complaints Against Public Entities Might Require Filing Earlier
In some states, if you are filing a lawsuit against a public entity, such as a police department or state transit system, you may be required to file a Complaint (or similar form of pleading against the state agency) within just six months. Your lawyer will know what the statute of limitations will be in your case and will calendar the date within their office filing system.
What The Civil Complaint Contains
The Complaint is a legal pleading that is required to be filed with the court within the jurisdiction in which the accident occurred. The complaint will identify the parties to the action, the factual circumstances giving rise to the defendant’s liability, the legal causes of action alleged, and a prayer for damages. Most Complaints do not need to be verified by a sworn affidavit unless you are alleging an intentional wrong – which is very rare in civil actions. The most important aspect in “alternative pleading” states, is that you provide the defendant with sufficient notice of your allegations and provide the defendant with sufficient time to legally respond to your allegations.
Service Of The Complaint
Once filed, the court will endorse it and return the Complaint back to your lawyer, along with a formal court endorsed summons that must be served on the defendant within a prescribed statutory period of time.
Once the Complaint has been legally served on the defendant, the defendant will usually have thirty-days to file and serve upon you’re side a formal responsive pleading known as an Answer.
Demurring To Complaint And Or Motion To Strike Certain Allegations In Complaint
The Answer is a formal legal response, usually a legal denial of any and all responsibility and will usually include affirmative defenses to your allegations made in your Complaint. The defense can instead choose to challenge the Complaint by demurrer and or preparing a motion to strike certain theories of liability alleged in the Complaint. Depending on the jurisdiction, the court will need to rule on the defendants motion within thirty to forty-five days.
If the court agrees with the defendant’s Motion to Strike and/or Demurrer, your lawyer will have a chance to amend the Complaint and re-serve it upon the defendant. Once your Complaint has been answered, the litigation formally commences and you will begin the discovery process.
Note On Cross-Claims
The person being sued in a Cross-claim will file an Answer similar to the one filed after the original Complaint.
Under certain circumstances the defendant who will want to pass on the to another person or business entity who has not yet appeared in the case. Th third-party may be brought into the lawsuit if an existing party files and serves a third-party Complaint. Similar to the Complaint, it will set forth the relevant facts and legal basis giving rise to the claims.