1.8 Initiating a Lawsuit

Under the U.S. legal system, parties who are in dispute may bring cases before a judge or jury for resolution. The person who files a complaint in a civil case—a case which involves a dispute between private parties—is called the plaintiff The party who files a complaint in a civil case , while the person at whom the complaint is directed is known as the defendant The party at whom a complaint is directed in a civil case . In a criminal case, where a defendant is accused by the state of violating criminal law, the complaining party is called a prosecutor The complaining party in a criminal case where a defendant is accused of violating criminal law . The U.S. court system is an adversarial system, whereby the trial court sets the parties against each other in order to find the truth. This process is started by a plaintiff who files a complaint A formal document that establishes a party’s reasons for making a claim against another party in the court. A complaint contains the cause of action The recitation of facts and law under which a plaintiff requests relief : the recitation of facts and law under which the plaintiff requests relief. Most claims have a statute of limitation A law that requires a complaint be filed within a specific time period from the date of harm , which requires a complaint be filed within a specific time period from the date of harm or else a plaintiff loses the right to file a claim.

Upon the filing of the complaint, the clerk of the court notifies the defendant of the lawsuit and provides a timeline for the defendant to respond. The defendant may then file a request for dismissal A motion filed by a defendant asserting that the law does not support a cause of action , whereby he or she asserts that, even if all alleged facts are true, the law does not support a cause of action. It is at this point that frivolous lawsuits are terminated by the judge through dismissal. If that motion to dismiss is denied, the defendant files an answer A document in which a defendant either admits or denies the allegations of a complaint —a document whereby the defendant either admits or denies the allegations of the complaint. Many courts require that the request for dismissal and answer be filed in one document to save time and resources. A defendant may, in the answer, challenge a court’s jurisdiction or assert what is called an affirmative defense A statement of facts submitted by a defendant, which, if proved, may defeat a plaintiff’s claim .  Affirmative defenses are those that will excuse a defendant from unlawful behavior, such as permission, self-defense, or lapse of time. Sometimes the answer will contain a counterclaim A claim raised by a defendant opposing a plaintiff’s claim and seeking some relief from the plaintiff; also known as cross-complaint or a cross-complaint, wherein the defendant raises his or her own allegations against the plaintiff, who now becomes a defendant as well.

If the defendant fails to file an answer, he or she will be in default failure of a defendant to fulfill an obligation and the court, on the theory the defendant has constructively admitted the allegations of the complaint, may enter a judgment in favor of the plaintiff. A defendant’s failure to answer may usually be remedied in some manner based upon a showing of a sound reason for the omission. A plaintiff must also file a reply a statement submitted by a plaintiff that responds to a defendant’s answer or cross-complaint to the defendant’s answer/cross-complaint or risk default.

Sometimes, a third party may have an interest in a case to which it is not a party—as in the case of a Native American tribe claiming interest in a custody suit involving an Indian child.  In those types of cases, the court may allow a third party to have anintervention a motion used by a court that allows an interested third party to become part of a lawsuit by joining either the plaintiff or the defendant in the case and achieve party status.