The Art of Suing: Anyone Can

You’ll often hear people wonder, “Can I sue?” Or, after a particularly frustrating or galling experience, you’ll say to yourself, “I ought to sue.”

When most people ask if they can sue, they are really asking something else. They are not really asking whether a lawsuit can be commenced. Instead, they are wondering whether the plaintiff--the person who brings the suit--will be successful in getting a judgment--winning damages, making the defendant pay.

You can almost always sue. You do not need permission from any government official to bring a lawsuit. And usually you do not even have to notify the prospective defendant that you propose to sue him or her, although you might save a lot of trouble and heartache if you give your opponent a chance to fix the problem before going to court.

What does it mean to file a lawsuit against someone? It’s a procedure, with a lot of paperwork, that essentially forces another person or company to respond to your complaint.

First, you file certain papers with the court clerk’s office and pay a fee, and the lawsuit has begun. It sounds simple, but those few acts set a whole string of events in motion.

You have to “serve” the defendant. That means that the defendant is personally given certain papers, usually a complaint and summons, that inform him or her that a suit is pending, the nature of it and that he or she must respond.

If the defendant does nothing, the plaintiff can usually obtain a judgment, called a default judgment. In other words, if you don’t put up a fight, you lose and the judge decides how much you owe.

Once a plaintiff has a judgment, there are other legal governmental powers used to enforce it, whether it is garnishing a defendant’s wages or seizing his bank account. (But’s it’s not always easy to collect, even with the help of the legal system.)

The parties to a lawsuit also have the right to subpoena witnesses. They may use the power of the government to notify individuals that they must do certain things: turn over papers, answer written questions, testify at a deposition or in a court hearing. If the witnesses refuse, then the government--the court--can be called in to compel testimony or other response at the risk of going to jail for continued refusals.

As you can see, the right to bring a lawsuit and pursue it is a powerful weapon. And it is one you can use on your own. Lawyers are not mandatory. In fact, lawyers aren’t even allowed small-claims court, although you may consult one in the preparation of a case. And in every other kind of court, you can pursue your lawsuit on your own, without a lawyer, in almost all cases.

What does this mean to someone who might be sued? Basically, watch out--anybody can be sued without warning. Each of us is subject to that risk. It doesn’t happen over night; you’ll usually have time to act, get advice and respond. (In fact, many people complain that the process takes too much time.) But if you do nothing, you’ll face serious consequences.

On the other hand, there is no free ride for the plaintiff. In our system, if you lose, you normally do not have to pay the attorney’s fees of the defendant. However, over the last several years, courts have been increasingly willing to consider imposing a penalty when a plaintiff brings a clearly meritless lawsuit. Even attorneys have been penalized for bringing groundless suits on behalf of clients.