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Legal Information

Starting a Court Case

April 26, 2018

This page has information on how to start a court case by filing a petition and serving the other parties. Each state has different rules about what needs to be filed to start a court case. If you are thinking about filing a petition or a complaint you should talk to a lawyer or the court clerk at the courthouse where you are thinking about filing your court case.

How do I start a court case?

Most court cases start when one party files a complaint, petition, or other legal documents with the court clerk. Usually the party that starts the court case is called the “plaintiff” or the “petitioner” and the party being sued is the “defendant” or “respondent.” After you have filed the documents, the other party must be “served” with the documents; this is also known as “service of process.” The person that you are suing will get a summons or notice of petition (legal notice to appear in court) and copies of the documents that you filed, which usually includes the petition and affidavit. This will give the other party notice of the court case itself and of any court dates that are scheduled. In some cases, the court clerk might arrange for service and sometimes the plaintiff him/herself must arrange for service on the other party.

What should I include in the petition or complaint?

There is certain information that usually has to be included in a petition for it to be heard by a judge. In most states, you will need to include the names, addresses, and possibly the birth dates of the people involved in the court case. If the case involves children, the names of the children, their addresses, birth dates, and address history is usually also required. If you are concerned about disclosing your address, you can ask the court clerk if there is a way for you to keep your address confidential.

You will need to allege certain things in your petition in order to meet the basic requirements of the court where you are filing your court case. The information required in your petition will depend on the type of court case you are trying to file. Basically, you need to explain the reason you are filing, what you would like to see happen (the relief you are requesting) and provide specific examples of what occurred that makes you think the judge should give you what you are asking for. In some cases, there will be additional requirements that you will need to meet so you should be sure to review the form carefully and complete all of the sections. For example, in a case to modify an existing custody order, you might have to include information about a change of circumstances that has happened since the original order was issued.

Most states have sample petition forms that you can fill in online. If your state does not have forms available online, you may be able to get the forms by asking the court clerk in the courthouse where you want to file your petition. Some courthouses may even have a staff person who is available to help draft petitions.

What is a summons or a notice of petition?

A summons or notice of petition is a legal document that provides notice to someone that a court action is pending and tells him or her when and where the court appearance is. Usually a summons will also direct that the person has to appear at that court date and that s/he may face consequences if s/he does not appear.

What is service of process and how do I accomplish it?

Service of process is giving the other parties in the court case the documents that were filed in the case so that they have notice that a lawsuit was filed against them and they have the opportunity to respond. There are very specific rules on who, when, and how to serve a person. Every state has different rules about service of process but generally, there are a few different ways to accomplish service upon the other party or parties.

  • Personal Service: Personal service is when you have someone physically hand the documents to the other party. For service to be proper (valid), states may have certain rules that need to be followed. For example, some states do not allow service on Sunday (or another Sabbath day that you know the person recognizes). In addition, you (the plaintiff or petitioner) cannot be the person to hand the documents to the other party. This is because if there is a question about whether or not the other person was actually served, the judge will want to confirm with a third party, someone other than you, that service actually happened.
  • Substituted Service: Some states allow for what is called substituted service or constructive service, which may only be available in certain types of court cases or if certain conditions are met. Some examples of what might qualify as substituted service are:
    • Serving a person of “suitable age and discretion” at the defendant’s home or workplace. A person of suitable age and discretion is generally considered an adult who does not have any developmentally disabilities.
    • After diligent efforts to personally serve the defendant, posting the documents on the door of the defendant’s residence and mailing a copy to his/her last known address.
    • Publication of the notice and/or documents in a newspaper chosen by the court or other forms of alternative service (such as service by email or social media). These methods of service usually have to be approved by a judge beforehand.
  • You will want to consult with a lawyer if substituted service is necessary in your court case.