A How To Guide: Filing a Civil Lawsuit

We hear legal terms and news stories of different cases and lawsuits, but how many people actually know how to file a civil lawsuit in your state?  One path is to hire an attorney or law firm to represent you and they will take care of all the legal proceedings, but only for a fee of course.  While retaining proper council is hands-down the best decision most of the time, it is important to understand how any citizen can file a civil case in your home state.  It's probably not a bad idea to look over a previous post I made outlining the difference between civil and criminal cases just as a refresher and to put into perspective what scenarios would qualify as a civil suit.  Each case is unique and the process truly is tailored to the needs of that particular suit and there is no way to outline every step that will occur, however there is a basic step-by-step process for all civil suits that I will try to outline.

So here is a scenario where an individual might feel compelled to file a civil suit against someone, and for the purpose of this explanation, they do not seek outside counsel representation.  Say Jim is driving on the highway and gets into a fender bender with Bob.  When the police arrive the issue Jim a traffic citation because they say he failed to maintain his lane, and the two parties exchange insurance relevant information.  A month later, Bob calls Jim and says I plan to sue you because your insurance company is not paying for all of the costs I expected to get fixed (he could be telling the truth, or he could just be trying to get that front passenger door fixed from 4 years ago).  Regardless, Bob decides to go ahead and sue Jim for the costs of the repairs he wants.  If he lives in New York City (and generally anywhere else) these are the steps he would need to take:

*legal documents are always in full uppercase*

Step 1 - Go to the Courthouse: The Plaintiff (Bob) goes to his local County Civil Courthouse, generally in the county where he resides.  Bob lives in NYC so he will go to the Civil Court (which houses Small Claims Court) at 111 Centre Street.

Step 2 - File Papers: Bob files a SUMMONS and COMPLAINT. Generally he could file these documents in the county courthouse where either the plaintiff (Bob) or the Defendant (Jim) reside.  Filing these documents with the County Clerk lets the defendant know they are being sued and what the lawsuit is about.  For New York City, there is also a $210.00 filing fee due at the time of document submission.

Step 3 - Decide How to Serve the Papers: Bob decides how to serve the defendant with the Summons and Complaint, either by mail or a third party process server.  The plaintiff cannot personally serve the papers and designated registered agent is also allowed to receive the papers on the defendants behalf.

Step 4 - Defendant Answer: Bob will then wait the specified time for the defendant to file his ANSWER, which is a court document similar to the SUMMONS and COMPLAINT where the defendant officially responds to each allegation in the plaintiffs papers and is filed in the same court.

Step 5 - Discovery: This is the period of time where each party is able to request information from each other, or get answers to questions or documents based on the facts laid forth in the court papers.  Failing to respond to Discovery in a timely or efficient manner will result in severe legal consequences.

Step 6 - MOTIONS:  Typically following Discovery but not always, both parties will have the opportunity to file any and all MOTIONS with the court.  A MOTION is a formal written request asking the court to do something.  There are numerous MOTIONS on a range of topics like: MOTION to Dismiss (when either party feels the lawsuit is not warranted), MOTION to Compel (filed to enforce a Discovery request), MOTION for Entry of Default Judgement (filed when defendant fails to respond to the original COMPLAINT and the judge can enter the final Judgement)

Step 7 - Judgement or Mediation/Settlement: The final step for Bob will be to enter mediation for a settlement (usually the preferred path), or take the case to trial where a judge or jury will enter a judgement.  Courts will often require both parties to go to mediation, where an independent mediator will hear and look at the facts and provide a suggestion for a settlement.  If both parties agree to the settlement, they are entering into a binding agreement enforced by the court.  If you elect to go to trial you better have a very strong claim and be prepared for additional fees and costs associated with going to trial. 

And that is about it!  These are the steps to file an official civil lawsuit and hopefully get some form of remedy to your COMPLAINT.  I hope this helps anyone seeking to file a lawsuit (although I hope you never have to actually file a suit in the first place!).

What's the Word?

Although I have not yet begun law school, working for a law firm has illustrated the importance and complexity of correct grammar, syntax and wording necessary for legal writing.  When I began my job as a paralegal I knew one of my main responsibilities was going to be drafting and editing a wide variety of legal documents, yet I was nervous because I really had no experience in that specific regard.  I have always enjoyed writing and expressing emotions and arguments through words, but allowed myself to be lax in the details of perfect grammar and syntax because I felt the idea I was conveying was most important.  Legal writing is unique because the idea and message you're conveying is equally as important to specific writing details, with both needing to be as close to perfection as possible.  

Scrolling through legal blogs I came across one called Forum Legal, authored by Rupert Haigh, which focuses primarily on the details of legal writing and the necessary rules to follow.  It's important to note that there is no significant difference between legal writing and any other form of writing, except the syntax and vocabulary used.  One post in particular from Rupert's blog that stood out was a post where he breaks down the difference and usage of Who, Whom, Which, and That.  I can personally attest that understanding the proper times to use Who or Whom is something I have encountered on several occasions. 

Who or Whom?
The basic distinction between the two is that "who" acts as the subject of a verb, while "whom" acts as the object of a verb or preposition.  I actually had to look up a few examples to make sure I understood, because in common everyday speech it really is not that important.  However, when I am drafting or editing contracts or other documents, the proper distinction between the two is critical.  As with any official binding legal contract, every line must be air tight with no room for any possible outcome other than the terms set forth.  

Example: Whom are you going to believe, me or your own two eyes?
Example: I saw James, who was a former client of mine.

Several times at work when I have been trying to solve the "who" or "whom " dilemma I am reminded to a brief scene from my favorite show The Office.  Perhaps this will help some, or at least provide a quick laugh!

Which or That?
The usage and difference between "which" or "that" is the other grammatical dilemma broken down in the Forum Legal blog.  As Rupert explains, the two terms are nearly interchangeable but there are a few clear guidelines to follow.  Both terms can be used when introducing clauses that identify or define.

Example: A paper which explains the relation between supply and demand.
Example: A paper that explains the relation between supply and demand.

Rupert's post goes on to explain that one should use "which" but never "that" when introducing a clause that gives additional information

Example: The car, which achieves 30 mpg on the highway, has been sold.
Example (wrong): The car, that achieves 30 mpg on the highway, has been sold.

I know the difference between these words is much more important to people in the legal profession, but it can be useful for anyone to understand the rules and proper usage.  Forum Legal is a great blog that offers a wide variety if straight forward tips pertaining to legal writing.  I left a comment on this specific post because the simple explanation offered by Rupert is straightforward and explains the complex relationship in an easy way to understand.  I can use his blog as a reference when I need to quickly understand something without having to read a lengthy explanation.  I hope this helps anyone curious about the proper usage of who, whom, which, and that!

Baby Veronica

One Supreme Court case from last month that did not get much news coverage was the 5-4 decision in Adoptive Couple v. Baby Girl, which addressed the thorny issue of adoptive parental rights versus biological parental rights.  Complicating the case further was the Federal Indian Child Welfare Act (ICWA) which came into play because the father of Baby Veronica was a member of the Cherokee Nation.  Family law is almost exclusively in the jurisdiction of state courts, which makes the case even more unique and influential. 

The heart of the case is centered around three year old Veronica Brown, who for the first two years of her life was raised by a couple from South Carolina who intended to adopt her.  However, her biological father who resides in Oklahoma and is registered with the Cherokee Nation, wanted custody and the right to raise his biological daughter.  The story is complex, but the Supreme Court ruled against the father and sent the custody case back to the South Carolina courts. 

 

Background Facts:  The biological mother of Baby Girl became pregnant but did not live with the father and he did not provide the mother financial support.  Dusten Brown, the father, claimed he tried to provide assistance but the mother refused.  Regardless of the why, Dusten Brown did not provide support financially.  The mother sent the father a text asking if he would rather pay child support or relinquish his rights, of which he chose the later.  However, while in court Brown testified he thought he was relinquishing his rights only to the mother.  The mother attempted to verify that the father was a member of the Cherokee Nation but spelled the father's name wrong and misrepresented his birthday on the request so the Nation could not locate the father's registration and therefore the mother listed the baby's race as "Hispanic" rather than "Native American" on the birth certificate (all mistakes were unintentional).  The mother decided to put Baby Girl up for adoption because she did not feel she was financially stable to support her new child her other two children she was already struggling to feed. 

 

Adoptive Couple, who resided in South Carolina began adoption proceedings in the state and the girl spent the first two years of her life with the couple as they moved closer to finalizing the adoption.  However, the Cherokee Nation eventually identified the biological father and filed a notice of intervention under the Federal Indian Child Welfare Act (ICWA).  ICWA was passed by Congress in 1978 with the main purpose of protecting Native American children and to help keep them with their American Indian families in response to an exceedingly high rate of child removal by federal and private agencies.  The father then stated he did not consent to the adoption and sought custody, and the trial court in South Carolina denied the Adoptive Couple's petition for adoption and granted custody to the biological father.  The trial court based their ruling on the ICWA and said the family did not follow proper procedure, even though the couple was not made aware to any issue with the biological father when they initiated adoption proceedings.  Baby Girl was subsequently removed from her home of two years and sent to live with her father in Oklahoma.

 

The Ruling:  The Supreme Court ruled 5-4 in favor of Adoptive Couple but remanded the case, which means they struck down the South Carolina ruling based on the rationale used and asked them to look again.  The Supreme Court held that the ICWA was intended to stop the alarming practice of removing Indian children from Indian families "due to the cultural insensitivity and bias of social workers and state courts".  For this case however, the court found that the biological father had previously relinquished his rights and never had legal or physical custody of the child.  Therefore, since he never had custody of any kind and had relinquished his parental rights before birth, the ICWA's goal of preventing the breakup of Indian families did not apply and could not be enforced.  Furthermore, the court ruled that the ICWA's preferred path of placing the child in custody of another family members, the tribe or any other Indian family also did not apply because none came forward throughout the process.  Finally, the Supreme Court held that if the lower court's rationale was applied any Indian father would be able to play an "ICWA trump card" where he is able to override the wishes of the mother and the best interest of the child simply because of legal technicality.

 

The Supreme Court's decision did not end the legal battles since they remanded the case back to the South Carolina Supreme Court, and all parties involved had to wait for what the new ruling.  Yesterday, the South Carolina Supreme Court ruled in favor of Adoptive Couple based on the new criteria from the Supreme Court, and Baby Veronica will now be officially adopted by the South Carolina family and live out her childhood with them.