If you believe you have a legal claim and want to file a lawsuit, you might be wondering how to sue someone and what steps you need to take. Well, this comprehensive guide on how to sue someone will walk you through the steps you need to take.
How to Sue Someone Step One: Do You Have a Case?
While people like to joke that Americans will sue anyone who looks at them the wrong way, you can only sue someone who caused harm through negligence or intentional actions.
Liability
In order to file a lawsuit, there needs to be liability. This means that someone is responsible for the damages or harm you suffered. They may be responsible due to negligence (they acted irresponsibly) or because they did something intentionally.
In order to prove liability, you need to prove that there is a legal theory that allows you to recover damages. This means the other party had a legal duty to act a certain way, and they failed to do so. So negligence or breach of contract would be a legal theory for recovery.
Evidence
Lawsuits are expensive and time-consuming, so you should consider the likelihood of winning your case before you sue someone. An important step in how to sue someone is determining if you have enough proof to back up your argument. The plaintiff or person filing the lawsuit has the burden of proof to prove beyond a reasonable doubt that the other party is liable. Write a list of people who witnessed the event and start gathering documents and saving emails and screenshots of messages. You can bring this evidence to an attorney when they evaluate your case. They will do additional evidence-gathering in the discovery phase, but anything you can gather in advance will be helpful.
Damages
Damages is a legal term for the financial compensation for the losses you suffered due to the other person’s liability. They are generally focused on financial losses, such as medical bills, property damage, loss of income, etc., but in some cases, you may receive compensation for nonphysical harm like emotional distress or loss of consortium.
In addition to financial damages and emotional damages, the law allows for punitive damages in some cases. If the defendant’s actions were intentional and show malice and immorality, the court may decide to punish the defendant and deter them from repeating the behavior by adding punitive damages. This is extra damage that will be paid to the plaintiff. There are also statutory damages that the law specifically states must be paid to the plaintiff if the defendant is found guilty. Also, damages that are indirectly caused by the defendant’s actions may be listed under the umbrella of “special damages.” These can be things like lost wages, the cost of making the plaintiff’s house accessible, etc.
This guide is meant as a brief introduction to how to sue someone. But no two cases are the same, so you need to speak to an attorney about what damages you may be due and how to prove the damages.
How to Sue Someone: Proving Damages
In order to claim damages, you need to prove that:
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- You have been caused X harm
- The harm is as a result of the defendant’s actions and wouldn’t have occurred otherwise
- In some states, you may have to prove that you were not at fault
Your lawyer will present documentary proof as well as seek expert witness testimony and testimony of witnesses involved. For example, if you are suing the defendant for defamation of character, you might present the following evidence for emotional distress damages:
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- Bills for visiting a therapist or counsellor
- Testimony of friends and family to show how your mental state changes
- Evidence of bullying or nasty messages received as a result of the defamation
It is up to your attorney to put a realistic number on your emotional distress that they can successfully argue. They may bring in expert witnesses to testify to how long it is likely to affect you and how it may impact your life and career.
Some states require the plaintiff to have no fault in the incident in order to be able to claim damages. If the plaintiff is even a little bit at fault, they will not be able to sue. If you are looking up how to sue someone in California, you will be glad to hear that it is a comparative fault state. It means that as long as you are less than 50% at fault, you will be able to claim damages. Your damages will be reduced by the percentage of your fault as determined by the court.
How to Sue Someone Step Two: Check the Statute of Limitation
This is one of the most important steps in how to sue someone. A statute of limitation gives a window for people to bring a lawsuit against someone. Once the statute of limitation is up, the plaintiff can no longer seek legal remedy. The reason why this is such a vital step in how to sue someone is because your claim will be dismissed immediately if the statute of limitations is up.
Here is a table of statutes of limitations for common types of cases. Some statutes of limitations can be as low as a year or serious crimes like murder may not have statutes of limitations. Here are some statutes of limitations:
- Personal injury cases – A personal injury case statute of limitations is 2 years. If the injury is discovered later, then the statute of limitations is 1 year after the date the injury is discovered.
- Property damage – A property damage case has a 3 year statute of limitations from the date of the property damage.
- Breach of oral contact – A breach of oral contract has a 2 year statute of limitations from the date of contract breach.
- Breach of written contract – A breach of written contract has a 4 year statute of limitations from the date of contract breach.
- Claims against government agencies – Government agency claims have a shorter statute of limitations. It can be 6 months to a year, depending on the circumstances.
It is best to check the statute of limitations before filing a lawsuit to save time and money. If you have questions about statutes of limitations or how to sue someone, your local court will have resources. Your attorney will also be able to provide information on how to sue someone. Click here for information on how to find a lawyer.
For more information about statutes of limitations in California, read California Code of Civil Procedure sections 312-366.
Claims Against the Government or Government Agencies Statute of Limitations
The statute of limitations can vary depending on the type of claim. The most common claims are:
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- Personal injury or personal property damage – 6 months from the date of damage or injury (Government Code section 911.2)
- Breach of contract – 1 year from the date of the contract breach (Government Code section 911.2)
Personal Injury Statute of Limitations.
The law for personal injury statute of limitations is in California Code of Civil Procedure section 335.1. We recommend reading that law if you want to learn more about how to sue someone for personal injury. A personal injury case is one where someone is injured or dies as a result of negligence or an intentional act.
The statute of limitation for personal injury lawsuits is 2 years from the date of the injury.
Property Damage Statute of Limitations
The laws for property damage statute of limitations are California Code of Civil Procedure section 338 and California Commercial Code section 2725. Property damage can occur from negligence or an intentional act.
The statute of limitations for property damage lawsuits is 3 years from the date of the property damage.
Claims Against Medical Care Providers Statute of Limitations
The laws for medical malpractice statute of limitations are California Code of Civil Procedure section 340.5 and California Code of Civil Procedure section 364. Before filing a medical malpractice suit, you must give the healthcare provider 90 days’ notice.
The statute of limitations is 1 year from the date the plaintiff discovered the injury or should have reasonably discovered the injury. In some cases, it may extend to 3 years.
Claims Against Banks Statute of Limitations
The law for claims against a bank statute of limitations is California Code of Civil Procedure, Section 340. These claims might be for banks authorizing or paying checks that were forged or signed without authorization.
The statute of limitations is 1 year from the date of the bank paying the funds.
Libel or Slander Statute of Limitations
The law for libel and slander statute of limitations is California Code of Civil Procedure section 340(c). Slander is verbal defamation, and libel is written, printed, or photographic defamation.
The statute of limitations for slander or libel is 1 year from the date that injury was caused.
Breach of Contracts Statute of Limitations
The law for breach of contracts is California Code of Civil Procedure section 339 (oral contracts) and California Code of Civil Procedure section 337 (written contracts)
The statute of limitations for oral contracts is 2 years from the breach of contract. The statute of limitations for written contracts is 4 years from the breach of contract.
Construction Apparent Problems/ Patent Defects Statute of Limitations
The law for apparent problems statute of limitations is California Code of Civil Procedure section 337.1. This includes apparent problems in construction, survey, or design and lawsuits filed against builders, contractors, or architects.
The statute of limitations is 4 years from the date the construction was mostly finished.
Construction Unknown Problems/ Latent Defects Statute of Limitations
The law for apparently problems statute of limitations is California Code of Civil Procedure, Section 337.15. This includes apparent problems in construction, survey, or design and lawsuits filed against builders, contractors, or architects.
The statute of limitations is 10 years from the date the construction was mostly finished.
Personal Property Left Behind In Accommodation Statute of Limitations
The law for property that is left in accommodation like apartments, hotels, boarding houses, hospitals, lodging houses, etc. is California Code of Civil Procedure Section 341a.
The statute of limitations is 90 days from the lodger/guest’s departure.
Government Claims
Government claims have a very different process to other types of lawsuits. If you want to make a claim against the government or a government agency, then you will need the help of an attorney. The process of how to sue someone is vastly different from the process of how to sue the government.
Property damage and personal injury claims against the government have a 6 month deadline to file the administrative claim. You should speak to a lawyer and read California Government Code section 905 and section 911.2.
After filing the administrative claim, the government has 45 days to review your claim and respond. If your claim is denied, you have 6 months to file a lawsuit.
Can The Statute of Limitations Be Paused?
In some cases, the statute of limitations will be paused; the legal term for this is “tolled.” It may occur in the following situations:
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- The defendant is legally insane
- The defendant is a minor
- The defendant is incarcerated
- The defendant is out of state
The statute of limitations period will resume again once the situation has passed.
How to Sue Someone Step 3: File Your Lawsuit
Now that you have determined that you are inside of the statute of limitations and you have a legal claim, the next step in how to sue someone is to file a lawsuit. There are a number of steps involved in this. A lawyer will make the process quicker and easier, so we recommend hiring an attorney to help you.
Naming the Defendant
The first part of filing a lawsuit is naming the defendant. In some cases, that may be easy; you may be suing someone you know. But in other cases, it may not be so straightforward. There could be multiple defendants, or you may not know their name.
You need to do a little research to find out who the person at fault in the case is, to begin with. For example, if you buy a product and it causes health problems, you need to figure out if you should sue the store, the company that owns the chain of stores, or the product manufacturer. If you name the wrong defendant, you may lose your case. Your attorney can help you out by doing a little bit of research to find out who the defendant may be. They will look into who told people to do certain actions and are therefore liable. Generally, the best approach is to be a little overzealous in naming anyone who may be liable and allowing the court to decide who the liable parties are.
This section of how to sue someone is all about figuring out who the defendant is and how to name them in the lawsuit so there is no room for confusion.
How to Write the Defendant’s Name
As per the Department of Consumer Affairs’ website guidelines, you need to be exact when naming the defendant. Any spelling mistakes or inaccuracies could cause issues with your case or collecting compensation.
How to sue someone: individual or multiple individual defendants.
If you are naming people in a lawsuit, then you need to write their full first name and surname. You can also include a middle initial if you know it. If someone is more commonly known as another name, then name their legal name and then their more well-known name afterwards in an aka. For example, Lesley Smith, aka John Smith. If you are naming multiple people, name them all in the same manner as above, even if the people are married, partners, and related. It is common to refer to partners as John and Bob Smith, but you need to name them individually, like John Smith and Bob Smith.
How to sue someone: businesses.
There are many different ways to sue a business, depending on the business entity. County records can be helpful to find the legal names of businesses as well as the partners. A corporation is the easiest; you just write the full legal name of the corporation. If the business is a partnership, then you need to name all of the partners by their full name and the partnership. For example, Billy Hamlet and Julie Goat and their partnership Billy Goat Tea. The format for a business owned by 1 owner is similar. You would name the owner by their full name and their legal business name. Some businesses might be owned by other corporations; then, you would name both corporations.
One of the main reasons for setting up a business under entities like corporations and LLCs is to protect directors and officers from liability. This means that if the corporation is sued, the director’s personal assets cannot be touched in the lawsuit. However, not all corporations act as if their corporation is separate from their directors. For example, some companies may move money and assets between the corporation and the director’s accounts. If this is the case, you can “pierce the corporate veil” by naming the directors in the lawsuit too and providing evidence to the court that the corporation is not separate from the directors. This will ensure the money for your settlement is accessible when it comes time to collect.
How to sue someone after a car accident.
In some cases, this may operate in a different way because the person driving the car may not have owned the car. Because insurance companies cover the owners of the car, if you just name the driver, the insurance company may not help the claim.
In a car accident claim, you need to name the driver of the car and the owner of the car. If multiple vehicles were involved, then you need to name the drivers and owners of all the cars involved. It should look like this:
Bob Smith, driver and John Smith, car owner.
If you do not know the driver or owner of the car because the driver drove off instead of swapping information, then you can file Form INF 70 with the DMV to get the name of the owner.
Finding the Defendant
You may know their name, but you need to ensure the address you have for them is correct so you can serve them a copy of the claim once you file it.
There are a number of ways you can find addresses:
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- If you have the phone number of a business or person, you can use a reverse directory either online or in the public library. This will not help if the number is unlisted. Alternatively, you can enter the phone number into a search engine to see if you can find an address. This is more likely to work for businesses.
- If the person owns property, then you can search for their phone number on the tax rolls at the local tax assessor’s office. You will be able to search by name or property address. Alternatively, the county registrar/recorder’s office also has property records.
- If you are trying to figure out how to sue someone who has moved house and you only have their old address, you can ask the Postal Service for their new address. You can contact the Postal Service and find out if they filed a change of address order. If so, then you can file a form in order to get their new address in order to serve legal papers. The form is on the S. Postal Service’s website.
- If you are suing an LLC or corporation, then their business information and the agent they have nominated for service will be listed on the California Secretary of State You can find out information about how to request additional information about the LLC or corporation on the website too.
- If you are suing a limited partnership, then the process is the same. You can look up the information listed on the California Secretary of State
- If you are suing a business or partnership with 1 owner, then you can find the names and information of all business owners on the fictitious business name statements at the county clerk/recorder’s office. Some counties have this information available on the website; others, you will need to contact or visit the office.
File Your Claim With the Correct Court
You need to pick the correct type of court for the claim and the correct legal jurisdiction for the claim. If you file the claim with the wrong court, you will have to start the process all over again. This can eat into the time of the statute of limitations or just be time-consuming and costly. An attorney will be valuable in helping you to determine which court to file your claim with.
Before you fill out your court forms, follow these guidelines to pick the correct court.
In most cases, you will file your claim with the court that has jurisdiction of the defendant’s place of residence or where they conduct business. However, there are often exceptions:
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- How to sue someone after a car accident- file the claim in the defendant’s county of residence or the county where the accident occurred.
- How to sue someone because of a breach of contract – file the claim in the defendant’s county of residence or where they work. Alternatively, you can file in the county where you both signed the contract.
- How to sue someone as a seller when the buyer did not pay for the product – you can file in the county where the buyer purchased the item, where they currently live, or where they lived when they purchased the item.
- How to sue someone as a buyer suing a seller – You can file a claim in the county where you currently live or where you lived when you purchased the product or service. You may also file a claim in the county where you bought the product or service.
- How to sue someone (credit card companies) – You can file your claim in the county where you currently live or where you lived when you signed up for the credit card. You can also file your claim in the county where you applied for or signed the contract for the credit card.
Fill Out the Forms
The next step in how to sue someone involves paperwork; we’re sorry to say. If you hire an attorney, they will help you to fill out these forms or may fill them out and file them on your behalf. If you are suing someone through small claims court, then a lawyer is optional. If you choose not to hire an attorney, then you can speak to the court’s small claims advisor for advice and help filling out the forms. You should also read the information package that goes allow with the plaintiff’s claim form, Form SC-100-INFO, as a guide in how to fill out the form.
You will need to fill out the following forms:
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- Form SC-100 – Plaintiff’s Claim (compulsory)
- Form SC-100A – Other Plaintiffs or Defendants (optional) Fill it out if there are multiple plaintiffs or defendants
- Form MC-030 – Declaration (optional) Fill it out if you need additional space to add witness testimony, evidence, and additional information
- Form SC-103 – Fictitious Business Name (optional) Fill it out if you are a business
How to Fill Out Your Forms
You can get the forms you need from the court’s website, in person at the county clerk’s office, or you can mail requesting the forms you need. You will need to include a self-addressed and stamped envelope for the court to send the forms. Find your court’s address and website information here. Fill out the forms you need to. Some jurisdictions require additional forms, so check with the court clerk or visit the court’s website.
If you are struggling with filling out the forms, you have a few options:
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- Hire a small claims advisor to help you by reviewing the forms
- Go to the public law library and find books about filling out the forms
Once you are happy with the forms, you can file your claim.
How to File Your Claim
Once you have filled out your forms, the next step in how to sue someone is filing your claim. You need to follow the following steps.
The first step is to pay a filing fee. Each type of case will have a different filing fee, and the court’s website will have a list of the fees. You may apply for a fee waiver if you meet certain criteria. If your fee waiver is approved, then you will not have to pay a filing fee; if it is denied, you will have to pay a filing fee.
The second step is to give your forms and filing fee to the court clerk. Some jurisdictions like multiple copies of corms, so check the court’s website in advance. The court clerk may ask you a few questions about the forms as they look through them to make sure everything is in order. They will set your court date, but you can request certain times of the day or even pick a date and time in some jurisdictions. At this point, you should tell the court clerk if you need an interpreter or special accommodations for a disability. The court clerk will stamp your form to show it has been filed, note down the date, time, and location of the hearing and provide you with copies for your records and to serve the defendants.
The third step is to create a folder for your court documents. You should put your copy of the forms you filed in that folder. Keep it somewhere safe where you can find it easily and add documents to the file as you receive them.
The fourth step is to make a clear record of your court hearing. As the plaintiff, the judge will likely dismiss the case if you do not show up to the hearing. In some cases, they may hear the defendant’s side and then make a judgement on that alone.
The fifth step is to serve your claim to the defendants.
How to Sue Someone Step Four: Serve Your Claim
You know in TV programs, when a character gets approached by a stranger who confirms their identity and then hands them papers, saying, “you got served.” Well, that is a dramatized version of the legal process of notifying someone that they have been named in a lawsuit. It is called service, and it provides the defendant’s information about the lawsuit, such as, what your claim is, and the damages you are suing for. It will also give them information about the trial and what the next steps are.
The Service of Process needs to be carried out in a precise manner; any deviation can result in your case being dismissed. Read these guidelines about the Service of Process to learn about what you need to do. If you have hired a small claims advisor, they can help advise you about the process.
Here are some additional resources to help you:
Form SC-104B Small Claims Proof of Service
Form SC-104C Small Claims: How to Serve a Business or Public Entity
Who Can Serve The Papers?
The person who serves the papers could be anyone who is not involved in the case and is over the age of 18. Many people ask people they know, like relatives, friends, or co-workers to serve the papers. Alternatively, you can hire a “process server” to serve the documents professionally or the local sheriff to do so. Both of those options will charge a fee.
How to Serve Court Papers?
The “server” may try to serve in person. They will hand over the papers and ask the person to sign to show they have received them. If the person is not at home or work if the server goes there, then in some cases, the server may leave the papers with a person at charge at the workplace (over 18) or a person living with the person (again over 18).
An alternative option is you can mail the claim via certified mail. This is not always reliable and can cause issues if your papers get lost in the post.
How to Sue Someone Step Five: Prepare For Court
All you need to do now is prepare for trial. Do not allow yourself to think that because you are in the right, you will win your case. You need to provide evidence and have a clear argument in order to win.
We recommend gathering all your evidence and writing notes about what points you want to make. Create a chronological list of events and jot down what evidence you will show. Also write the reasons why you are claiming the amount of damages you are requesting.
If you have hired a small claims advisor or an attorney, they can help you to prepare.
Make a folder of all the evidence that you have collected in relation to the case and put them in a folder. You may collect things like:
Repair bills
Medical bills
Contracts
Diagrams that show how an accident happened
Repair or replacement estimates (get at least 2)
Photos
Police reports
If another party has important documents that you need to collect as evidence, then you can subpoena that evidence. The form you will need is Form SC-107.
You will need to take the proof of service and copies of your court documents to the hearing with you. Talk to witnesses or people who can testify on your behalf and ask them to attend the trial with you. You should only bring witnesses who will support your case, not ones who may testify against you. For example, you could bring the passenger who was in the car with you when you had the accident, witnesses to the accident, or even your mechanic to testify to the extent of the damage to your vehicle.
If a witness is reluctant to attend the hearing, you can subpoena them to compel them to attend. The form you will need is Form SC-107, the same as for subpoenaing documents.
If you need an interpreter, you should check in with the court clerk again before the hearing. Check on the interpreter situation no later than a week to give them time to organize one. Some courts provide interpreters for free; others you may need to pay for. You can take your own interpreter with you, but they cannot be one of the witnesses or otherwise involved in the case. The interpreter must be over the age of 18. Here are some tips if you need a court interpreter.