You can file a complaint about anything, but that doesn't mean you have a valid lawsuit.
To have a valid civil lawsuit you need to make sure that you have the right to actually sue the defending party.
One clear exception to this is when:
- The one you are suing has no knowledge of the law
- Their lawyer (if any) is crooked and just out to make some cash
In such cases, your complaint might not get tossed out of court.
Otherwise, expect to have your Complaint dismissed immediately.
This is part of my Legal Self Defense series, designed to provide those who went to public school with a short, concise, easy to digest ovreview of how to access the law. For more information, see the introduction.
Standing - The Right to Sue
In order to have a real lawsuit against someone you need to have the right to actually sue them.
The right to sue (standing) comes from having one or more valid causes of action against someone.
A civil cause of action requires that
- there be some type of harm (physical, emotional, the violation of a right, or otherwise) to you
- the defendant caused the harm (intentionally or via negligence)
When you think about it, this makes sense because our system of law is supposed to be about restitution, or making the victim whole.
No harm = No cause of action = No right to sue
Causes of Action
There are many different causes of action, each of which has one or more elements that must be proved in order for the cause of action to be valid.
Here are some common ones along with their elements:
Threatening someone with bodily injury.
- An intentional threat or force directed at another, whether any injury was casued or not.
- The threat was not lawful (e.g. no authority and/or not agreed to)
- The threat created a reasonable fear that you were in peril
- The defendant seemed to have the ability to back up the threat
- You suffered damages as a direct result of the threat
Harm or humiliation resulting from intentional, unwanted touching, what most people think of as assault.
- The defendant harmfully/offensively touched you
- The defendant intended the contact and the resulting harm/offense
- The defendant acted unlawfully (e.g. without authority or consent)
- You suffered damages as a direct result
Breach of Contract
Having an enforceable contract and breaching it in a manner that causes damage to another party to the contract.
- The existence of an enforceable contract
- An act by the defendant that breached the contract
- Damage resulting to you from the defendant breaching the contract.
There are many, many more valid causes of action in our system of law.
That being said, there are some wrongs that do not have a cause of action, meaning that you cannot get them adjucated in a court of law.
Finding Causes of Action and Elements
Before you even consider starting a lawsuit, you should do the following:
- Determine the cause(s) of action
- Determine the elements required for each cause of action
- Note the facts in your case that fulfill each element of each cause of action
Determining the cause(s) of action
When looking into causes of action, I like to check a legal encyclopedia. Some of my favorites (in order) are:
- American Jurisprudence
- Corpus Juris (the body of the law)
- American Jurisprudence 2nd edition
- Corpus Juris Secundum
Most good (e.g. state capitol) law libraries will have one or more of these available.
Alternately, you can find many causes of action simply by doing a quick google search for causes of action, cause of action, etc.
Determining the element(s) of a cause of action
Once you know which causes of action might apply, you need to look up each of their elements.
Element: Something required to be proven for a cause of action to be valid
A search via your favorite search engine should turn up at least some idea of what the elements are.
As mentioned in finding the law, you should try to find at least one court ruling applicable to the jurisdiction of the court you are filing in rather than relying on any statute at large or codified statutes.
An easy way to do this is to consult an annotated version of one of the above mentioned legal encyclopedias. These will provide references to court cases that you can then look up and cite in any arguments made.
To actually look up the cases, it helps to go to a large law library and ask one of the available librarians how to find a particular case. Of course, if you are lucky you will be able to punch the case into google (or your favorite search engine) and pull it up.
Once you know what any controlling courts have said the elements are, you will then need to state all facts to prove each element.
Noting the facts for each element
Using Battery (outlined above), you would need to state facts that prove each element.
The facts might consist of the following:
- Defendant punched Plaintiff in the face (element 1)
- Defendant intended to punch Plaintiff (element 2)
- You did not agree to be punched (e.g. you weren't boxing, sparring, etc.) (element 3)
- Defendant broke your jaw (element 4)
- You suffered $1,500 damages in medical bills as a direct of Defendants actions. (element 4)
- You suffered $3,000 damages due to loss of work as a direct result of Defendants actions. (element 4)
We will get to the actual format of the complaint in an upcoming article, but it is worth noting that when writing facts in a complaint, you should:
- Use simple sentences having a single subject and verb
- Avoid embellishment
The reason for this is that when the defendant files an answer, they must address each factual allegation by doing one of the following:
- Admitting it
- Denying it
- Noting that they are without knowledge
They can answer Denied if any part of a sentence is untrue.
They can answer Without Knowledge if any part of a sentence is something they were not aware of.
For example, if you wrote the following instead of the above:
1. Defendant was wearing a tattered heavy metal t-shirt and purposefully punched Plaintiff in the face with the intend to break plaintiffs jaw, which he did, causing plaintiff $1,500 worth of medical expenses and $3,000 in lost wages.
If any of the following are true, the defendant could then answer without knowledge:
- they broke your jaw
- you suffered medical expenses
- your medical expenses totalled $1,500
- you suffered loss of work
- you list $3,000 in wages
If they did not intend to break your jaw or their t-shirt was actually a greateful dead t-shirt they could simply answer Denied.
However, if you had used the 6 points above instead, they might have to answer:
- Without knowledge
- Without knowledge
- Without knowledge
By keeping your facts simple and straight, you force your opponent to either lie (perjury) or remove issues in controversy.
Avoid embellishing your statements with details not relevant to proving the facts. In the above example, talking about what the defendant was wearing and saying that they intended to break your jaw have nothing to do with proving the elements of the cause of action.
By using long winded sentences with multiple topics, you gain no ground as it becomes easy for your opponent to deny or at least claim they are without knowledge because of some minor detail.
If you can get them to admit something, it is admitted for all purposes and stands on the record as a fact that is no longer in contest.
Winning your case
In order to win your case, you need to prove the facts that meet each element of each cause of action.
The more you can get your adversary to admit to in their Answer, the fewer facts you will have to prove via discovery or trial.
Prove all of the needed facts and you win.
Fail to do so and you lose (or have to let a jury decide on the outcome).
Getting help from lawyers
If you are not sure and have done as much research as you can, you might consult a lawyer (hiring them as counsel).
They should be able to:
- Tell you what (if any) causes of action you have
- Tell you the elements of each cause of action in your jurisdiction
- Help you establish the facts needed for each element of each cause of action
If they cannot do that much, they are either incompetent or lazy. Run.
- I am not a lawyer.
- This is not legal advice.
- Use this information at your own peril.
About this article
This is part of my Legal Self Defense series. Read the introduction for more information.
If you like what you see, you can browse other articles by clicking my name below. If you are interested in seeing this series as it is published, be sure to follow me and check your Feed tab to see articles from those you follow.
Be well! @tony.jennings