How to File a Lawsuit

8/13/2019 How to File a Lawsuit

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How to file a lawsuit

1. In the 1ststage of the lawsuit (known as the pleadings), you write a document (called thecomplaint) that:

Describes the basic facts of your case Names of everyone involved References the legal theory to back up your claim States what you want as the outcome (money, an agreement of action etc)

2. You (the plaintiff) and the person you are suing (the defendant) are known as the parties of thelawsuit.

3. How do you determine where the suit will be filed? In a small court theres no jury and you cant bring an attorney although you can meet

one prior to the court date. The process is quick and a lot less complicated than in other

courts. On what qualifies for small claims court check with your local clerk of court to

find out what the requirements are.

4. Once the complaint is completed, it is filed in the selected court. This really gets the ball rollingand it gets the attention of your adversary. The filed complaint has to be delivered to the

defendant. This is called service of process. In addition to the complaint, the defendant will also

be served a summons. The summons explains what the defendant needs to do as a result of the

complaint.

Defendants Response

Once the defendant has been served, he must respond to your complaint by filing responsepleadings. One type of response pleadings is called an answer. In that document the defendant

might totally deny the complaint, part of it, or point a finger at someone else not named in the

complaint, point out technical problems in the complaint itself etc. In other words the answers

purpose is to somehow modify the complaint.

Motions

If the defendants response pleading isnt an answer then it must be in the form of a motion. A motion introduces some other question to the court that the judge must rule on. Motions can be filed at any time during the trial up until the final judgement is made.


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The party that initiates the motion is called the mover and the other party is called the opposingparty.

When one party files a motion the opposing party can file a request for the judge to deny themotion. For example, the defendant may file a motion to dismiss if:

o There is no legally sufficient claim in the complaint that warrants the award the plaintiffis requesting.

o The court lacks the subject matter jurisdiction or personal jurisdiction for the case.o The court isnt of the proper venue.o There has been a problem with the process itself.

Countersuits

The defendant may also file a countersuit against the plaintiff, which makes the plaintiff thecounter-defendant. This begins a new complaint process; however, the 2 cases will be heard as

one lawsuit.

If the defendants response isnt filed within the allowed time, you may ask the judge to enter adefault judgement, meaning that you will be awarded everything you requested in the

complaint. However, judges often allow the defendant additional time to file responsive

pleadings if theres a good reason for not getting it done on time. Once the pleadings are filed,

discovery begins.

10 Steps to Take Before You File a Lawsuit

1. Evaluate whether you have a good case Dont make an emotional decision. Base your decision on facts and reason.

2. Determine the theories of law under which you will file your case Do some research on the law and see if it supports your theories.

3. Determine whether you have evidence to prove your case

Make a list of all possible evidence you will use such as documents, writings, objects,records, photographs and so on.

4. Determine whether there are witnesses to help prove your case Was there anyone who observed first hand any of the issues that will be considered in the

course of the lawsuit

Are there witnesses who can testify about the events and evidence you will present at trial


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Will these witnesses be willing to testify on your behalf or would you have to summon themto court

5. Determine the expenses you will incur and be financially prepared Take the cost of filing a lawsuit into account including filing fees and costs, earnings lost

while you pursue your lawsuit.

6. Consider whether you have the physical and emotional energy7. Think about whether the defendant will sue you back8. Carefully consider whether youll be able to collect on a judgement

Conduct a thorough investigation of the party you wish to sue to determine what types ofassets they have to satisfy any judgement you might receive. You cant squeeze blood from

a stone.

9. Check whether your lawsuit is timely Certain types of lawsuits must be filed within a certain prescribed period of time known as

the statute of limitations.

10.Attempt to settle your dispute by less costly means.Courts Act

[Ch0302s3]3. Process of courts

1.

All summons, warrants, orders, rules, notices and mandatory process whatsoever, whether civilor criminal, shall

a. If issued or made by the High Court, be signed by the Registrar;b. If issued or made by the court of a magistrate, be signed by him,

and every such summons, warrant, order, rule, notice and mandatory process shall be sealed

with the seal of the court issuing or making the same.

2. All summonses, warrants, orders, rules, notices and other processes whatsoever, whether civilor criminal, issued or made by or with the authority of any court respecting any cause or matter

within its jurisdiction shall have full force and effect and may be served or executed anywhere

within Malawi.

3. Service of any summons, warrant, order, notice or other document in a civil matter may bemade by an officer of the court or by the legal practitioner acting for the party at whose


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instance, or on whose behalf, such service is to be effected, or by any person in the employment

of such legal practitioner, or by an agent of such legal practitioner authorized in writing in that

behalf.

[Ch0302s7B] Seals of District Registries

1. In every District Registry there shall be used such seal as the Chief Justice shall direct.2. The seal of every District Registry shall be impressed upon every document which is required by

any written law to be so sealed and all such documents and copies thereof which purport to be

sealed with the seal of a District Registry shall be received in evidence without further proof.

3. For the purposes of this section seal means any device capable of making an imprint, whetherembossed or otherwise, on paper.

Order II

Interpretation

O.2, r.1

1. Interpretationnotice means written notice unless the court in any case shall otherwise order;

Order VIII

Service

O.8, r.1

Address for service

O.8, r.2

Mode of service


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Subject to this Order and Order IX, service of every document shall be personal and shall be effected by

delivering the document or by producing it for inspection and delivering a copy thereof. A copy bearing

the seal of the court and the signature of its proper officer shall for this purpose be deemed to be an

original document.

O.8, r.3

Non-acceptance

If the person to be served refuses to accept the document or copy, it may be left near him and his

attention diverted to it.

O.8, r.5

Service at address of service

Any document delivered at the address for service of any person shall be deemed to be served on such

person.

O.8, r.6

Notice of hearing

Notice of hearing shall be 7 clear days notice unless the court shall otherwise order.

O.8, r.7

Return date, other proceedings

Notice of all other proceedings shall be 2 clear days notice, subject to any law to the contrary, and

unless the court shall otherwise order.

O.8, r.12

Proof of service

Service of process may, unless the court shall otherwise order, be proved either by the endorsement on

the summons of the officer of the court who effected service or by affidavit of the person who effected


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service and, where the service was personal and the person served was not personally known to him, by

such affidavit and the affidavit of the person who identified the person to be served. The person served

shall sign an acknowledgement of service, but refusal or inability so to sign shall not affect the validity of

the service.

O.10, r.3

Affidavit by defendant

1. If a defendant desires to defend the whole or any part of the claim he shall, within 8 days afterservice of the summons inclusive of the day of service, give notice by an affidavit made by himself of

his legal practitioner to the court from which the summons issued, of his intention to defend.

2. The affidavit shall state that the defendant has a good defense to the plaintiffs claim and shall,subject to sub-rule (3), indicate clearly the grounds of his defense.

3. If the grounds of the defendants defense are such that the plaintiffs allegations in his statement ofclaim cannot be dealt with adequately except by filing a defense, the defendants affidavit shall so

state and the defendant shall, within 7 days after filing the affidavit or within such extended time as

the court may allow, file and cause to be served on each plaintiff a defense in Form 5.

O.20, r.6

Service of orders

1. Every judgement or order requiring any person to do any act other than the payment of money shallstate the time within which the act is to be done. If no time be so stated, the act shall be done

within 7 days from the date of the judgement or order.

2. If the person required to do such an act was personally present or represented by a legalpractitioner when the judgement or order was given or made, it shall not be necessary to serve him

with a copy thereof or any notice of the consequences of default. If he was not so personally present

or represented, no proceedings for his arrested or commitment shall be taken unless he shall have

been served with a copy of the judgement or order endorsed with a notice in Form 15.

Main points of distress law

The 5 principal points to be taken into account when defining the remedy of distress are:


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a. Whether or not the tenants overdue payment is distrainable rent due under a currenttenancy;

b. The means by which distress is to be levied;c. The goods which can be taken;d. The landlords duties related to the sale of the goods;e. The remedies available to the landlord in the event of problems and the ways in which the

tenant or a third party can challenge his actions.

a. RentDistress is only available to enforce an obligation to pay rent reserved in a lease or tenancy.

Leases often define payments such as service charge as rent or provide that they are to be

treated as or recoverable as rent. It is unclear whether or not the inherent right to distrain

attaches to all payments described as rent or whether a contractual right equivalent to distress

attaches to them. It is also unclear whether or not the amount of a claim which the tenant may

have against the landlord.

b. The levy of distressi. The landlord who is an individual may either ask a certificated bailiff to levy the distress

or levy it himself. A company or other corporate landlord has to use a certificated bailiff.

If the bailiff levies the distress he must comply with additional rules including a

requirement to give the tenant notice that distress has taken place.

ii. The levy of distress is not allowed on a Sunday and it must take place between sunriseand sunset. The levy consists of 3 legal stages known as entry, seizure and impounding.

Under no circumstances is entry onto the demised premises be by force but the rules

relating to what constitutes forcible entry are difficult to ascertain.

c. The saleProviding that the distress is not illegal the buyer of the goods from the landlord will receive

good title to them. There can be difficulties in assessing whether or not a distress is illegal,

irregular or excessive. An illegal distress is generally onewhich is unlawful from the beginning,

for example, where the landlord distrains when there are no rent arrears. It is irregular where


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the seizure was legal but the distress is then subsequently improperly conducted. An excessive

distress occurs where the value of the goods taken is obviously disproportionate to the

outstanding rent. The assessment of value is made by the landlord or bailiff unless the tenant

has requested a valuation.

d. The tenants remediesi. The remedies available to an aggrieved tenant depend upon whether the distress is

unlawful, in which case it is void ab initio, or irregular, or excessive. If the distress was

excessive, the tenants only remedy at law is an action against the landlord or the bailiffs

for damages. He may recover damages for the temporary deprivation of his goods, but if

the goods have been sold, the measure will be the value of the goods, after deducting

the rent and proper expenses, which seems to add little to the tenants right to receive

the overplus. Presumably an injunction would be granted before sale in a suitable case.

ii. If the distress is irregular, i.e. conducted irregularly after an initially lawful levy, againthe tenants only legal remedy is a claim for the special damages suffered, wit h the

possibility of an injunction, where appropriate.

iii. The distress will be illegal if the landlord (or other person) was not entitled to distrain atall, e.g. where there were no arrears, or there had been a valid tender, or if there has

been some irregularity at the onset, e.g. where there has been a forced entry, or

privileged goods have been taken. In such a case, the distrainor is a trespasser and

several remedies may be available to the tenant. The tenant is entitled to rescue the

goods at any time before impounding; thus there would be no criminal or civil liability

for rescous. He can replevy. There is a potential claim for damages in respect of the

period of deprivation and/or the full value of the goods, in trespass or conversion

without any deduction for rent. As the distress is void ab initio, the distrainor can pass

no title on sale, and the owner can proceed against the purchaser in conversion. If the

rent was in arrear, the tenant can recover double the value of his sold goods.

iv. An aggrieved tenant, who is able to allege wrongful interference with his goods,within the meaning of the Torts (Interference with Goods) Act 1977, could apply for

interlocutory relief under section 4 of that Act. The torts included are conversion of

goods, trespass to goods, and negligence and other torts resulting in damage to goods

or an interest in goods. The courts can order delivery of the goods to the plaintiff on

such terms and conditions as it thinks fit. However, attempts to use that procedure are


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likely to raise some similar questions to those which would arise in replevin, e.g.

whether the plaintiffs allegation of wrong are sufficient to bring him within the section,

whose object is, not so much to produce an order restraining a party from seizing goods,

but rather to produce a positive order for the delivery up of those goods.

v. When the distress is irregular or excessive the tenants choice of remedy is limited to aclaim for damages and perhaps to obtaining an injunction to stop the sale of the goods.

e. The timeDistress can be levied on the day after the rent falls due, even if the rent is payable in advance. It

can only be done in the hours of daylight between sunrise and sunset.

Complaints

1. Wrongful distress2. Unlawful eviction3. Harassment4. Breach of Agreement5. Trespass to property6. Negligence

Unlawful Eviction

A tenant can be legally evicted only after the landlord has brought a court proceeding and hasobtained a judgement possession.

Only a sheriff, marshal or constable can carry out a court ordered warrant to evict a tenant.Landlords may not take the law into their own hands and evict a tenant by use of force or

unlawful means e.g.:

o Use of threats of violenceo Remove a tenants possessions

When a tenant is evicted, the landlord may not retain the tenants personal belongings orfurniture. The landlord must give the tenant a reasonable amount of time to remove all

belongings - the real property law


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How to File a Lawsuit

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