If you or a loved one has been injured in an accident, filing a claim may feel complicated. Keep reading to find out how to file a personal injury claim.
Step 1: Establish Legal Standing
Though it sometimes seems like anybody can file a lawsuit about anything these days, this isn’t true. Article III of the United States Constitution requires that you have “legal standing” to bring a lawsuit.
To establish legal standing, you must prove that:
- You have the legal capacity to file a lawsuit. Children under age 18 and mentally-incompetent adults don’t have the legal capacity to file a lawsuit. However, someone with legal capacity can generally file a lawsuit on behalf of someone without legal capacity.
- You suffered actual harm. You can’t file a lawsuit simply because you’re upset about something. To file a lawsuit, you must have personally suffered actual physical, emotional or financial harm.
- The injury can be reasonably traced to the defendant. You don’t need to prove that the defendant caused your injury yet in order to file a lawsuit, but you do need to show that there’s a reasonable likelihood the defendant caused your injury.
- The court can provide relief. To file a lawsuit, your injury must be redressable. In other words, the court must be able to provide you with a remedy that addresses your problem.
It’s a good idea to ask yourself whether you have legal standing to file a lawsuit, but don’t worry if you’re not sure. Your lawyer has an ethical duty to verify that you have standing before filing a lawsuit.
Step 2: Hire a Lawyer
If you suffered a minor injury or harm, you may not need an attorney. The Constitution affords competent plaintiffs the right to represent themselves. Judges and lawyers refer to plaintiffs who represent themselves as “pro se” plaintiffs.
Step 3: Figure Out Where To File Your Lawsuit
Tennessee’s trial courts are courts of “general jurisdiction,” which means they can hear any civil (or criminal) case. The vast majority of personal injury cases are heard in trial courts.
In Tennessee, there are 2 kinds of trial courts:
- Circuit courts. Tennessee is broken up into 31 judicial districts. Every judicial district has 1 circuit court.
- Chancery courts. Just like circuit courts, every judicial district has 1 chancery court.
There is very little difference between circuit courts and chancery courts in Tennessee. Generally speaking, you can file your personal injury lawsuit in either court, though your attorney might have a strategic reason for choosing one over the other.
Once you’ve determined the proper court for your case (circuit, chancery, or general sessions), you need to determine the proper venue.
The term “venue” refers to the geographic location where you can file your lawsuit. In most personal injury lawsuits, you can file your lawsuit:
- In the county where the defendant lives or does business, or
- In the county where the accident occurred.
If you file your lawsuit in the wrong venue, the defendant can file a motion to have the case dismissed. If the case is dismissed, you’ll have to refile your lawsuit in the proper venue (and pay the associated fees).
Step 4: File and Serve Your Complaint
A civil action officially begins when you:
- File a summons and complaint with the appropriate court and pay the associated filing fee, and
- Serve the defendant with a copy of the summons and complaint.
Keep in mind that Tennessee law requires cases to be filed within a certain time period. This time period is called the “statute of limitations.” In most personal injury cases, the lawsuit must be filed and served within 2 years of the date of the accident.
Step 5: Be Patient
Once you file and serve your lawsuit, the defendant has a certain amount of time to respond to the allegations. This response to the allegations is called an “answer” and usually must be filed with the court within 30 days of the defendant receiving the summons and complaint.
During this 30-day period, your attorney might be working on any number of things, including pre-trial motions and discovery requests. Keep in mind that any time your attorney files a document with the court or makes a request, the defendant has a certain amount of time to answer. The legal process can be excruciatingly slow, but it’s designed to give both parties an opportunity to make their case.
Contact Eldridge & Blakney, PC for more information.