If you were injured in a car accident and your claim has been rejected by the defendant driver’s insurer or you have received an unsatisfactory offer of settlement, your only other option is to file a lawsuit. A lawsuit starts with the filing of a Complaint, in the appropriate court.
The Complaint must be sufficiently worded as necessary to not only survive a motion to dismiss but also to properly inform the opposing party of the nature of your complaint, the reasons why you feel the defendant was negligent, and the elements that demonstrate how the opposing party violated his duty of care towards you.
Small Claim Verses District Or Superior Court
You can file a complaint in Small Claims Court. It’s designed for non-lawyers.
However, we have not seen much success with pro se litigants in District or Superior Court. While the big picture may be understood, the Rules of Civil Procedure and the Rules of Evidence, are difficult to master on a one-time basis – especially if you are emotionally involved because it’s your own case. Even knowing what Court to file in can be tricky – there is a whole course in law school called “jurisdiction.” Further, each Court has its own rules, such as Rule 9A in Superior Court, for filing motions properly.
Thus, for a case in District or Superior Court, it is best to leave the drafting of the Complaint and all pleadings and responding to motions to an experienced car accident attorney. For a Complaint, for example, this allows the opposing party, the insurance trial attorney, and the Court, to be sufficiently informed of the nature of your claim by alleging certain facts, that the conduct of the opposing party was negligent or unlawful, and that you are entitled to relief as a matter of law.
Typical Pleadings in a Car Accident Injury Claim
Most car injury lawsuits center around the principle of negligence. For negligence to apply to your lawsuit, your allegations must include the following elements or factors in the Complaint so that your claim may proceed:
- The defendant owed you a duty to exercise ordinary care such as lawfully and cautiously operating a motor vehicle.
- The defendant breached his duty of care by violating a traffic law, driving recklessly, or by being inattentive.
- The defendant’s conduct caused the accident and the injuries that you sustained.
- You suffered damages as a result.
The pleadings should also outline the conduct that you are alleging was negligent and that led to the accident. These typically are:
- Failure to maintain a proper lookout while driving
- Driving in excess of the posted speed limit
- Driving at a speed too fast for the road and other conditions such as driving in a snow or rainstorm or in dense fog
- Failure to safely maintain or operate the car by not braking or swerving to avoid a collision
- Failure to stop at a red traffic signal or stop sign or to abide by other rules of the road that if followed would have prevented the accident from occurring
- Knowingly operated the motor vehicle while impaired or under the influence of alcohol or drugs
- Failed to stop for pedestrians who were in a marked crosswalk
- Unsafely and unlawfully attempted to enter another lane of traffic occupied by the plaintiff
These issues of the defendant’s conduct may come out in the discovery phase of the case, but, a good accident lawyer will have sufficient grounds prior to filing suit, and use discovery to flesh them out.
You need not go into detail in the Complaint about how the accident occurred or the specific conduct of the defendant, which can be ascertained during the discovery phase of your lawsuit.
Following the Complaint, there are a multitude of pleadings. For example, the defendant files an Answer. Sometimes, the defendant files a Motion of Dismiss, because they argue that the Complaint is insufficient, or the Complaint names an inappropriate party. Sometimes, the defendant defaults or fails to respond to discovery requests on a timely basis. The litigation process is complicated, often nuanced, and should have an experienced trial lawyer as your counsel.
Retain a Car Accident Attorney from Burns and Jain
It is rarely a good idea to represent yourself in a personal injury claim, regardless of whether you feel that it is a clearcut claim and wish to save attorney’s fees. Most claims have issues of liability, comparative fault, and the extent of damages that an experienced car accident attorney from Burns and Jain can handle to your benefit. Call us at (617) 227-7423 for a free consultation about your injury claim.