Q. I can’t find a lawyer to take my case so I need help in knowing some of the basics of drafting my complaint for damages. I was injured when I slipped and fell on some spilled soda while shopping in a supermarket a few weeks back.
A. The reason you might not be able to find a lawyer to take your case is because “slip and fall” accidents are among the most difficult to prove due to the fact that the plaintiff, that would be you, carries the burden of proof in establishing that the defendant had notice of the dangerous condition before you slipped and fell and that the defendant failed to take reasonable action to prevent the accident.
Before addressing your question directly, I would like you to consider the following options:
Small Claims Option – Simple and Fast
If your injuries are minor and you do not expect to lose a great deal of work, you might consider filing your case in small claims court rather then superior court. Most small claims courts have very simple filing and pleading requirements. The downside of course is you will be limited to the amount you can collect in small claims court. Most states limit their small claims cases to amounts that are under $5,000.
Drafting A Civil Complaint – State Court
Having chosen to file your case in state court, the first thing you will need to know is that each state, and even each county, may have their own drafting and filing requirements that must be strictly and fully followed or risk having your lawsuit dismissed. You will need to obtain and review the specific Rules of Court for your county and state before you proceed with drafting your complaint. For this reason, I will be now be addressing only the most basic and elementary aspects of pleading practice.
The Complaint And Summons – The Basics
A civil complaint is a formal pleading. Most states have what are known as judicial counsel forms that allow you to essentially fill in the boxes while asserting your claim in more detail in other sections of these forms.
The summons is essentially an order, issued by the clerk of the court, summoning the defendant to appear in the case and respond to the complaint. You will be required to prepare the summons and include it with the complaint at the time of filing. Once the summons is court endorsed and returned to you, you will need to have the summons and complaint legally served upon the defendant(s).
Most notice-pleading states will require your complaint to contain at least the following basic elements:
Identifying The Parties
You must clearly identify the parties to the action. This would include your complete legal name as the plaintiff and the complete legal name(s) of any all known defendants. Those defendants that are unknown are referred to as “Doe Defendants” which you must plead properly should you later identify other responsible parties before or after the statute of limitations has expired for each of your causes of action. Properly alleging Doe defendants in a civil complaint is very tricky business and it is strongly advised that you receive legal guidance from an experienced personal injury attorney on these issues.
Statement Of The Facts And Law Giving Rise To Liability
You must clearly state sufficient facts that give rise to a legal cause of action. In your case, the cause of action would be negligence. This will require you to make a short and plain statement of how the accident occurred. At the very least, you will need to state the date and approximate time of the accident, the location of the accident, the cause of the accident, and a statement that you, the named party plaintiff, suffered some form of injury and resulting damaged that was the result of some negligent action or lack of action on behalf of the defendant(s).
Prayer For Relief And Judgment
You must clearly establish that the court has jurisdiction by stating with some degree of specificity that your damages, general, economic or otherwise is sufficient to trigger the courts jurisdiction. Most states will allow you plead according to later proof.
Finally, word of caution here, once you have drafted your complaint, it is strongly advised that you have your complaint reviewed for form and content by an attorney. This will likely cost you a few hundred dollars but it well worth it.
Some attorneys will actually be willing to draft your complaint and prepare the summons for you, but not be willing to be retained on the matter. This means the attorney will place you at the top of the complaint as a plaintiff pro per, which is Latin for one who is representing oneself on the matter.