Filing a personal injury Lawsuit

In many states, there is an exception to statutes of limitations which is called the “discovery rule.” Under the discovery rule, if for some reason at the time a personal injury occurred you did not know that a personal injury occurred despite the exercise of reasonable diligence then you have until two years (or whatever the statute of limitations period is) from the date that you discovered or reasonably should have discovered that the personal injury occurred in which to file a lawsuit.

This may seem a little strange. How could you not know that you were in a car wreck? The discovery rule, although it could theoretically apply in any type of case and is more often applicable to medical malpractice personal injury cases.

For example: You have a surgery and the statute of limitations in your state for medical malpractice cases is two years. Three years after the surgery you get a bad infection and find out that the doctor left a sponge inside of you when the surgery was performed. You would then have two years from the date you discovered the sponge in order to bring the lawsuit. Keep in mind also that in many states the discovery rule has a maximum amount of time in which it can apply.

For example, a state might have a two-year statute of limitations and also have the discovery rule, but have a 10-year maximum limit in which to bring a lawsuit. In other words, you may be able to go beyond the initial two years with the discovery rule, but you can never go beyond the 10- year maximum. This can be particularly important when considering statutes of limitations for injured children.

The policy behind all of these time limits and extensions in certain circumstances is to allow injured people enough time within which to discover the injury and file a lawsuit, while at the same time limiting the amount of time that a possible defendant has the threat of a lawsuit hanging over his or her head.

There are various other exceptions to statutes of limitations, that again vary by state. The most common ones include infancy and incapacity. In most states, if a minor, legally called an “infant” (all the way to age 18) is harmed, they have until a certain amount of time after their 18th birthday to file a lawsuit (unless there is a maximum overall time limit that will expire earlier).

Keep in mind that someone can sue on a minor’s behalf prior to her 18th birthday but, if nobody does, the minor has the right to bring suit up to a certain amount of time after she turns 18. The same holds true for people in jail or who are mentally incompetent, either someone must bring suit on their behalf or else they may wait until the disability or incarceration ends (again, often subject to a maximum amount of time to bring the lawsuit).

Filing a Lawsuit

In law school, future injury lawyers are taught how to draft a complaint, the document which is filed with the court which spells out who is being sued and why. That is pretty much the end of the teaching regarding how to file a lawsuit. New injury lawyers are often left to figure out on their own what other documents must accompany a complaint, how much it costs to file, how to serve the complaint on the defendant and all the other little details.

Because I am a injury lawyer who files a lot of lawsuits, I had to learn very quickly. In the following sections are the typical steps involved in filing a lawsuit.

The first thing that your personal injury attorney must do in order to commence a lawsuit is to draft a complaint. As you read this, you may refer to the sample complaint in the appendices section.

The complaint will contain your name and the names of any others with whom you are bringing the lawsuit, listed as plaintiff(s) and the name of the people or entities (corporations, governments) that you are suing, listed as defendant(s). These names are listed at the top of the first page of the complaint and along with the name of the court where the document is being filed, comprise what we call the “style” or “caption” of the case.