Anatomy of a Case

What happens first in a typical case?

Filing the Proper Paperwork

Most cases start with a formal filing in the proper court. This is called by many names, including Complaint or Petition. In this analysis, we will utilize the term Petition to mean this original document that effectively starts your case.

Filing the proper paperwork required in court. Once you have decided to sue, you must next consider the proper procedures for filing your Petition. There are several details which, if you overlook them here, will cause you to not be able to get your case before the judge. Knowing all of the pitfalls in this area is part of what attorneys are paid to do, and in most cases, it is worth it to enlist the services of an attorney in any litigation matter. However, even when you retain an attorney, it is helpful if you understand the background as to some of the procedures that will confront you in your case.

Often the court procedures will say that you must file in writing. However, this does not mean you must write a letter. In fact, most courts have special forms, which you must first obtain and complete. Without these forms, you will not be able to file your lawsuit. It should be noted that even though these forms are preprinted documents, the information required to be completed is considered the practice of law. Thus, attorneys can be retained to complete the forms, or you can bring the action yourself and complete the forms yourself. In most cases, however, State Bar Rules may restrict any attorney's ability to help you complete your forms without formally being retained.

Once you have located the proper court, and you know what forms are required to be filed to start the action, you must now complete the information concerning the defendant, or the person(s) or entity(ies) being sued by you. You must have the address of any defendants to make sure you will file your case in the right court. Your attorney will usually perform a defendant search to enable them to determine the proper name for each defendant and the address on file for each defendant.

The failure to sue the defendant by proper name or in its proper capacity is seemingly a minor issue to a person not familiar with lawsuits, but it is a critical part of the lawsuit process. Failure to sue the defendant by proper name may enable them to claim they had no notice of your lawsuit and thus, require you to start over again. More importantly, suing a defendant with a name other than the proper name may result in a judgment that is effective, but which no financial institution will recognize because the names on the judgment may not exactly match the names on the account.

For this reason, in any lawsuit such as a divorce, or a matter involving more than $5,000, you should carefully consider the prospect of hiring a lawyer to handle your case.

Costs. Each court is different, but you should be prepared to pay a filing fee and possibly other fees. While these fees are not exorbitant, you must pay them when you file, otherwise your case will not be filed.

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