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Commencing a Legal Action

    Lawsuits do not begin themselves. Someone must first decide to sue someone else for an alleged injury. If the decision is made intelligently, the person choosing to sue must have weighted several matters, among which at least three are basic.

    A potential litigant obviously feels aggrieved. But before making the decision to sue, he must first consider whether the grievance is one for which the law furnishes a relief. There are many wrongs that the law will not redress. if a person has suffered an injury that is not redressable by a court of law, litigation will be a fruitless attempt.

    Even if he concludes that his grievance is one for which the courts will grant relief, a potential litigant must consider the probability of winning the lawsuit. He must ask whether he can find and bring to court the person who has injured him; whether he can produce the witnesses and evidence that will prove the case; whether his adversary can justify his conduct or establish any defense to the action; and whether his estimate of the law will turn out to be correct.

    And then, perhaps most important of all, he must ask himself whether the lawsuit is worth the tiome, the effort and the expenses it will cost, or whether other alternatives, among them settlement, arbitration, self-help and letting matters rest, are better. He must also consider what form the relief will take. If is is a judgment for damages, will it be satisfactory? Will the defendant be rich enough to pay? Will he antagonize people whose good will he needs? Will the action publicize an error of judgment on his part, or open his private affairs to public gaze?

    It is only afert all these questions have been resolved that a potential litigant may consider to which court he should bring the case. He probably will have some choice, but it will be a limited one.

    A lawsuit must be brought before a court that has the power to hear the case. The power to hear the case is known as jurisdiction, which has two aspects: jurisdiction over the subject matter and jurisdiction over the parties. The former means that the lawsuit must be of the type that the court was created to decide. A criminal court would have no jurisdiction in a divorce matter. A federal district court will not have no jurisdiction over many disputes ( disputes, for example, over damages for breach of contract between citizens of one state ), because the subject matter jurisdiction of federal courts is limited by the Constitution.

     If the plaintiff’s claim arises under a federal law, or if he is to sue someone who is a citizen of another state, and his claim is more than the required amount, he may have a choice between the state court system and the federal court system. If he chooses a state court when federal jurisdiction is available, he must consider whether the other party will request removal of the case to a federal court.

    It is not enough that the court selected by the plaintiff has jurisdiction over the subject matter, however. A court must also have jurisdiction over the parties. Its jurisdiction over the plaintiff is established when the plaintiff files the suit with the court and thus voluntarily submits to its jurisdiction.

    For a court to have jurisdiction over the person of the defendant, it must be one in which the defendant can be required to appear. If the defendant is a citizen of the forum state, personal jurisdiction will not be a problem because everyone has to submit to the jurisdiction of his home state. But if he is from out of the forum state, whether a court can assert jurisdiction over him will depend on whether he satisfies the minimum contact laws of that state. Minimum contact laws are designed to protect a defendant from being sued in a hostile and possibly far-off location. They require that the defendant have sufficient contacts with the forum state so that maintenance of the suit does not offend traditional notions of fair play and substantial justice.

    Very often, more than one court in a state will satisfy the requirement of jurisdiction over a case. To select among them the question of venue must be considered. Venue relates to, and defines, the particular territorial area within the state in which legal action is to take place. Matters of venue are usually determined by statute. For example, venue statutes in most states provide that actions concerning interests in land must be commenced and tried in the county or district in which the land is located. Suits for divorce must be commenced and tried in the county in which one of the parties resides.

小雪

博主小雪出沒於魔都,目前工作是後端程序員,喜歡旅遊,特別是文化歷史遺跡和博物館,一生所愛日本彩虹樂隊 ( L'Arc-en-Ciel) ,家有橘貓朵朵一隻。

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