1.8 Initiating a Lawsuit

Within 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, while the person at whom the complaint is directed is known as the defendant. In a criminal case, where a defendant is accused by the state of violating criminal law, the complaining party is called a prosecutor. 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 in the court. A complaint contains the cause of action: the recitation of facts and law under which the plaintiff requests relief. Most claims have a statute of limitation, 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 court clerk notifies the defendant of the lawsuit and provides a timeline for the defendant to respond. The defendant may then file a request for dismissal, 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 the motion to dismiss is denied, the defendant files an answer—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. Affirmative defenses give reasons to excuse a defendant from unlawful behavior, such as permission, self-defense, or lapse of time. Sometimes the answer will contain a counterclaim 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 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 on a showing of a sound reason for the omission. A plaintiff must also file a reply to the defendant’s answer (or 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 a Native American child. In those types of cases, the court may allow a third party to have an intervention in the case and achieve party status.