How to Start a Lawsuit – The Complaint

So someone has wronged you. Maybe they have breached a contract with you, infringed your intellectual property, or crashed your car. You have written them, and maybe even threatened them with legal action, but they refuse to make things right. You realize that you must sue them, but how do you start?

In the US you file what is called a “Complaint.”  At the Federal level, it is governed by the Federal Rules of Civil Procedure (“FRCP”) Rule 3, and at the State level, in California, it is governed by California Civil Code of Procedure (“CCP”) starting at §420. Pursuant to FRCP Rule 8 and CCP §422.30-425.10, the Complaint alleges why the court has jurisdiction over the case and the parties, a basic description of why you are suing, and what you want from your opponent, the “Defendant” (i.e. your damages). 

In the UK, first you have to follow a pre-claim protocol which is essentially writing your opponent regarding your grievance and giving them a chance to fix the problem before you sue. Once you have done that, pursuant to UK Civil Procedure Rules (“CPR”) starting with Part 7, you do basically the same thing as in the US by filing what is called a “Claim Form,” and within 14 days of that you have to file your “Particulars of Claim” which gives the same kind of details you see in a Complaint.

There are two things that must be paid very close attention to when preparing the Complaint, and its equivalent in the UK: 1) Jurisdiction over the case and the parties; and 2) The “Elements” of the “Claim” or “Cause of Action”.

Jurisdiction breaks into 2 parts – subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction has to do with the type of wrong you want addressed. For example, in the US, there are some questions of Federal law, like patent infringement, that cannot be heard in State courts. You can only file them in Federal courts. Also, in both the US and the UK, different courts hear different cases depending on the amount of money at stake. For example, in California, you have 3 different levels: “small claims” for matters with under $5,000 at stake (CCP §116.220), “Economic (or Limited) Litigation” for cases between $5,000-$25,000, and “Unlimited” for cases over $25,000. Similarly, in the UK the High Court does not hear cases under £25,000 that could otherwise be heard by County Court, and the County Court has a small claims system for cases under £5,000. See the Practice Directions to CPR Part 7. Personal jurisdiction covers whether the court you have filed in has power over the parties to the case. To put it simply, a person or company has to reside or do business in the court’s jurisdiction in order for the court to have any power over him.

Only after the court has personal and subject matter jurisdiction, will it address the “Claim” in your Complaint.  Your “Claim,” can also be known as a “Cause of Action.”  There are causes of action for every known wrong that may be legally addressed.  Every cause of action has certain facts that must exist in order for you to prosecute it.  These are called “elements.”  They are like the ingredients for your lawsuit.  For example, for a breach of contract cause of action in the US, there are 5 basic elements: 1) there is a contract; 2) you (called the “Plaintiff”) have performed your duties under the contract, or were legally excused from performance; 3) the time for the Defendant to perform has occurred; 4) the Defendant has not performed; and 5) you, the Plaintiff, have been damaged.  California Approved Jury Instructions CACI 303.

Your cause of action does not, and should not, read like a novel. It needs to be concise. While some causes of action, like fraud, have to be written with a certain degree of detail, for most causes of action, you simply state the minimum facts to support the elements. FRCP Rule 8; CPR Part 16.2&4.

The Complaint is the core of your initiation of your lawsuit, but it usually has to be filed with a Summons, a Civil Case Cover Sheet ticking boxes for the court clerk, and related documents.  Most US and UK courts have what are called “Service Packs” available on their web sites that have all the forms you have to fill out, file and serve on the Defendant.  Please be advised that these forms have to be filled out accurately, so if you’re engaged in anything more than a small claims case, it is probably worth it to seek the counsel of an attorney.

Once your Complaint and related documents are filed with the Court, then you serve them on the Defendant and start the litigation process, which usually begins with the Defendant’s response to the Complaint and the Court sending you a list of deadlines.

Should you have any questions regarding "How to start a Lawsuit" be sure to contact our specialist team of solicitors on (UK) +44(0)203 287 9500, (USA) +1(949)431-5438 or make an online enquiry here and we will contact you.