The attorneys at Casey & Devoti recently published a Step-By-Step Guide to Making a Personal Injury Claim. This is the sixth of ten posts in the series, which will highlight the various steps throughout the personal injury claim process. We hope you find the level of detail informative. If you would like a copy of the complete step-by-step guide, email us at firstname.lastname@example.org.
Step #6 – Filing Suit
You were unable to settle your case short of suit despite your counsel’s best efforts and your willingness to compromise. Your lawyer put together a package setting forth the other party’s fault and the harms and losses resulting from his choices. Unfortunately, a significant difference of opinion exists as to the value of your claim and, as such, you and the other party were unable to resolve your dispute.
You don’t want to incur the time, energy and expense associated with litigation. But, you also don’t want to sell your claim to the adverse party or its insurance company short of the claim’s value. Your lawyer recommends you bring suit. So, what’s entailed in the filing of a lawsuit?
First, your lawyer must draft the document or pleading necessary to bring your case. In Missouri, that pleading is called a “petition” and in federal court it is called a “complaint”. In both cases, the pleading identifies the parties to the action, the circumstances surrounding the dispute, and the damages resulting from the choices made by the parties.
The person filing the petition is called the “plaintiff”; the party against whom suit is brought is called the “defendant”. Importantly, the petition must allege how the choices made by the defendant harmed the plaintiff. Your case begins with the filing of the petition or complaint.
The plaintiff must file the petition in the appropriate court. Missouri courts are divided into circuits. These circuits may include all courts located in one county (like the City of St. Louis, St. Louis County or St. Charles County) or multiple counties. Typically, a case alleging personal injury must be filed in the county where the plaintiff was harmed. Once the plaintiff files the petition, the Circuit Clerk prepares a document called a “summons”. The summons tells the defendant that it has been sued and provides direction about how and when to respond.
In most cases, the summons is delivered to the defendant by the county sheriff. This action is called “service”. The sheriff has 30 days from the date the clerk prepares the summons to serve the summons on the defendant. Once served, the defendant has 30 days to formally respond to the petition and the allegations made against it by the plaintiff.
If it is insured, the defendant should provide the petition and summons to its insurer. The insurer will then hire legal counsel to defend the defendant – its insured – and that lawyer will prepare the appropriate document responding to the plaintiff’s allegations. That document is called a “responsive pleading” and, in most cases, is titled “answer” because it literally answers the allegations. If the defendant is not insured, the defendant must find and hire its own counsel. Again, that lawyer will file the responsive pleading on behalf of her client.
However, defense counsel sometimes believes that the petition’s allegations simply are not sufficient to make a case against her client. In this case, defense counsel will file a motion asking the trial court to dismiss the case. These motions are fairly rare and, when meritorious, are often met by a motion made by the plaintiff’s lawyer asking the trial court’s permission to revise or “amend” the petition through the addition or tweaking of its allegations.
There is a cost to the bringing of a case. Those costs include both that associated with the filing of the case with the court clerk as well as the fee paid to the sheriff to serve summons on the defendant. In Missouri, those costs vary from circuit to circuit but typically run at least $170. The costs are quite a bit more for cases brought in federal court. Those costs now run in excess of $400.