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How Does A Lawsuit Begin?

A: If a claim does not settle, the only way to obtain a recovery is to file a lawsuit. Not every lawsuit results in a trial. In fact, most cases that are filed settle before trial. However, the best way to obtain the maximum settlement is an aggressive approach to fully explore and prosecute all available avenues for recovery, and to prepare each case as if it is going to trial.

The Complaint

A lawsuit begins with the filing of a Complaint by the aggrieved party, known as the plaintiff. The Complaint is a pleading which sets forth a brief statement of the facts, a listing of the asserted theories of recovery against the claimed wrongdoer (the defendant), and a prayer for relief.

Most personal injury lawsuits assert negligence claims. The law of negligence covers a wide variety of types of cases and circumstances, from automobile accidents, to medical malpractice, to products liability, and more.

A Complaint in a negligence action usually asserts four elements: duty, breach, proximate causation, and damages. The duty owed in a case will depend on the facts of the case and the theories of liability asserted by the plaintiff. For example, the duty owed by a driver in an automobile accident case is different than the duty owed by a retail store in a premises liability case, which is different than the duty owed by a doctor in a medical malpractice case. A plaintiff may assert several theories of liability in one case.

A Complaint usually also asserts that the duty was breached, and that the breach of that duty caused the plaintiff to suffer damages. The law recognizes several types of damages, including pain and suffering; medical expenses; lost wages; loss of future earning capacity; and disfigurement and embarrassment.

Venue

The location of the court where the lawsuit is filed is known as the venue. In most personal injury actions, venue can be proper where the accident occurred, where the defendant resides, or where the defendant “conducts substantial business activity.” There are numerous cases which interpret these statutes.

Why is venue important? Because different venues have different reputations. Some are viewed as liberal, some conservative, and some are unpredictable. In order to obtain the maximum verdict or settlement, it is essential that a Complaint is filed in the most favorable venue.

A defendant may object to venue if a case is filed in a improper venue. If this occurs, the court will hold a hearing to determine if venue is proper.