How to Start a Personal Injury Lawsuit

If you are considering filing a personal injury lawsuit without a lawyer, there are basic steps involved preparing and filing your lawsuit. The exact procedures vary by state, but the overall process is similar between jurisdictions.

Identify Theories of Liability

The first step in personal injury litigation is to evaluate the facts of the plaintiff's injury to determine possible theories of liability which may be pursued. Sometimes the facts will support only a single claim against a single defendant, while often the facts will support multiple claims against multiple defendants.

Sometimes, as is typically permitted by court rule, the plaintiff will initially bring alternative claims of liability which are inconsistent - that is, if one theory of liability is true, the other one must fail - although often by the time of trial the plaintiff will pick a single theory of liability rather than presenting inconsistent claims to the jury.

Identify Defendants

Once possible theories of liability are determined, it is usually pretty easy to identify the defendants who would be liable under those theories. Sometimes, for example in a hit-and-run accident, it may be difficult to ascertain the identity of the defendant.

For corporate and business defendants, it is often necessary to perform searches of state corporate information, and sometimes county information, to determine the identity of the appropriate defendant. Sometimes a business will be operating under a d/b/a or fictitious name. Sometimes the business will be based in a different county or state. It is important to determine that you are suing the correct defendant, and to determine how to properly effect service.

Depending upon state law, it may be possible to preserve a claim against an unknown, or "John Doe", defendant even after the statute of limitations would otherwise expire, provided appropriate steps are taken in advance - if this may affect your situation, consult a lawyer in your state about any possible options.

Prepare Initial Documents

Once the parties have been identified, and the causes of action have been selected, the plaintiff's attorney will draft a complaint. Generally speaking, the complaint will describe a set of facts which support the causes of action it describes, and then will go through the various causes of action describing how the elements of each cause of action is satisfied by the facts of the case.

The plaintiff will also typically prepare a "summons", which is a formal notice to the defendant that he or she will have to appear in court. Depending upon the type of action and local practice, the summons may include the date, time, and location of the first court hearing for the case. The rest of the time the court will typically mail a separate notice with that information, once "proof of service" has been returned.

These documents are filed with the trial court, along with a filing fee. The plaintiff may also file a "jury demand", which officially states that, to the extent allowed by law, the plaintiff wants the case to be tried before a jury.

Serve the Defendants

Service is made upon the defendants as required by local law and rules of civil procedure. Depending upon those rules and the circumstances, service may be effected in a variety of ways, including:

  • Personal Service - The plaintiff uses a process server to deliver the court papers to the defendant in person. Sometimes the defendant will attempt to avoid the process server, necessitating multiple attempts to serve the defendant, or service at an unexpected location.
  • Certified Mail - When permitted, service by certified mail can be cost-effective. Sometimes a defendant will refuse to sign for the certified letter, in which case it may become necessary to use personal service.
  • Registered Agent - Incorporated businesses which operate within a state are ordinarily required to designate a person who will accept service of process on behalf during normal office hours. (A business which engages in national mail order probably does not have to designate a registered agent in a state where it does not have offices or operations.) Typically, in serving such a business, the service may be effected at its main office, or by service upon the registered agent.
  • Substituted Service - Where the defendant cannot be located, or is shown to be deliberately avoiding service, the plaintiff may ask the court to permit substituted service. Service will be designed to make it likely that the defendant receives actual notice of the lawsuit. Depending upon local rules and practice, such service might be by posting the summons and complaint at the defendant's last known address as well as in a public place, posting in various designated public locations, publishing an advertisement in a newspaper, or by other means the judge deems appropriate.

After service is complete, the plaintiff files proof of service with the trial court, documenting when and how the defendants were served.

The Pretrial Hearing

Ordinarily, the first hearing in a personal injury lawsuit will be a pretrial, where the attorneys will meet with the judge to discuss scheduling matters, such as how long discovery will take, when certain motions may be heard, and how long a trial might be in the event that the case does not settle. The parties to the litigation usually do not appear for the pretrial conference.

The case will subsequently go through the discovery process and be scheduled for a settlement conference or trial. The process of getting to trial, and trying a case, will be very difficult for most people and, even if they managed to get through the early stages of commencing a lawsuit without legal help, many will find that they require assistance from a lawyer.

Copyright © 2005 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.