Pleading The Legal Basis For Liability -FAQ
I am about to retain a lawyer for injuries I received in a car accident. The lawyer informed me they would file my lawsuit against the other drivers after I completed my treatment.
Why Wait? Can’t We File Our Complaint Now?
Let me explain and start from the beginning. The person who brings the lawsuit is called the plaintiff. That would be you. Before filing a lawsuit against the responsible driver, referred to as the defendant, your lawyer will want to ensure you have completed most of your treatment so that they can fully understand the nature of your injuries, should they be long-term or permanent, and the range of damages and compensation you may be entitled to, before, filing the Complaint and litigation commences.
So long as your lawyer files before the statute of limitations, your case will be safe to proceed
What Is The Statute of Limitations?
Mandatory legal filing deadline
Your lawyer must file a complaint within your state’s prescribed statute of limitations. In most states, this is usually one year from the date of your accident, but you must check with your lawyer on your state’s time limit as soon after the accident as possible.
Suppose you fail to file your Complaint before your state’s statute of limitations expires. In that case, you will lose all your legal rights against the defendant for the injuries and damages you sustained in the accident.
What If The City Bus Caused The Accident?
Public entities can be held legally responsible for causing injuries as well
Cases against public entities may require a much shorter statute of limitations and prefiling notice requirements.
In some states, if you are filing a lawsuit against a public entity, such as a city bus driver, a county or state transit system, or even a federal employee, you may be required to file a Complaint (or similar form of pleading against the state or federal agency) within just six months. Your lawyer will know the statute of limitations in your case and calendar the date within their office filing system.
Again, seek and retain legal advice as soon as you can.
What Is A Personal Injury Complaint?
Essential elements of a personal injury complaint
A Personal Injury Complaint is a civil legal pleading required to be filed with the court within the jurisdiction where the accident occurred.
The Complaint must identify the parties to the action, the factual circumstances giving rise to the defendant’s liability, the legal and factual causes of action, and a brief statement of the types of damages you are seeking from the defendant, such as:
- Economic Damages
- General Damages
- Punitive Damages
- Costs of Suit
Most Complaints do not need to be verified (sworn under oath) unless your state requires you in cases where your complaint alleges intentional wrongs such as intentional infliction of emotional distress.
A complaint based on “information and belief” allows the plaintiff to amend the Complaint later should the facts or identities of the parties, which the plaintiff initially pled, be later discovered to be different from what was contained in the plaintiff’s original Complaint.
Most states follow what is called pleading in the alternative, which is a more relaxed form of pleading and requires that you provide the defendant with sufficient notice of your allegations and provide the defendant with enough time to legally respond to your claims.
Initial pleading stage – plaintiff’s complaint for damages
The plaintiff’s Complaint is the initial pleading for relief filed with the court and commences the legal action. However, the defense has no legal obligation to respond until the defendant is legally served with the Complaint.
What Does Legally Served Mean?
You must prove the defendant received actual delivery of your complaint
Legal Service of The Complaint
Once filed, the court will endorse it and return the Complaint to your lawyer, along with a formal court summons that must be served on the defendant within a prescribed statutory period.
Once the Complaint has been legally served on the defendant, the defendant usually has thirty days to file and serve a formal responsive pleading to your complaint.
What Is A Responsive Pleading?
Responsive pleading to the complaint can be an answer or a demurrer
The answer is a formal legal response. Usually, it is the defendant’s general denial of any and all responsibility for causing your injuries and includes affirmative defenses to your allegations made in the Complaint.
Affirmative defenses not pled by the defense in their answer are deemed waived.
What Are Affirmative Defenses?
Defenses that are possible but not yet known to the defendant
An answer will usually contain affirmative defenses, which are legal and equitable defenses that may apply to the defense of the matter.
Most answers contain a litany of affirmative defenses, even if no evidence suggests they apply to the case.
Affirmative defenses are generously listed in the defendant’s answer as a preauction against the risk of waiving them by not having challenged them earlier, which can later be determined as legal malpractice.
Below are some examples of affirmative defenses:
- The plaintiff has violated the statute of limitations.
- The plaintiff is not the true party in interest.
- Available administrative remedies preempt the plaintiff.
- The plaintiff voluntarily and knowingly assumed the risk of injury.
- The plaintiff failed to timely mitigate their damages.
- The defense was acting in self-defense.
- The plaintiff was comparatively negligent and hence partially responsible for the damages.
- The plaintiff sat on their rights – also known as the equitable doctrine of laches and equitable estoppel, which requires people whose rights have been violated to take legal action promptly.
What is A Demurrer?
Defendant’s demurrer to the plaintiff’s complaint
Under the common law, a demurrer is a legal petition through which a defendant could challenge the legal sufficiency of a complaint early in the proceedings.
The legal theory is based on the defendant’s claim that the plaintiff has no factual or legal basis to sue the defendant, and therefore plaintiff’s action must be dismissed as a matter of law.
In most states, a demurrer to a complaint must be filed and served within thirty days after the Complaint was served on the defendant.
What Does The Defendant’s Demurrer Specifically Assert?
A demurrer asserts that even if the factual allegations in the Complaint are true, it still lacks the legal sufficiency necessary to establish a lawful basis for the action.
The defendant must have legal grounds to bring a demurrer which can include:
- The pleading fails to state sufficient facts to legally establish a cause of action.
- The court lacks jurisdiction to hear the matter as pled.
- The plaintiff lacks the legal or mental capacity to sue.
- There is a legal defect in the joinder of parties.
- The pleading is so vague and uncertain that the Complaint is unintelligible.
Hearing on the demurrer is set by the court
Depending on the jurisdiction, the court will set a hearing date to rule on the defendant’s motion and requires your side to formally prepare an opposition to the demurrer.
If the court sustains (grants the demurrer), it will usually be without prejudice which means your lawyer will have a chance to amend the Complaint to conform with the court’s order and file and serve the plaintiff’s Amended Complaint upon the defendant.
Once the defendant answers your Complaint, the litigation formally commences, and you will begin the personal injury discovery process.
Once We Win The Initial Demurrer Stage Are We Safe?
Defense still has other chances to challenge your case through the motion process
After the demurrer in the initial pleading stage, the defendant will have other opportunities to dismiss the plaintiff’s case through similar motions, such as the motion for summary judgment and the motion for a directed verdict.
Consult With A Personal Injury Lawyer
If you have questions or require additional information about your legal rights and obligations, we advise you to contact and consult with a verified Personal Injury Lawyer as soon as possible.
