You file a personal injury lawsuit by submitting a document called a Petition in the Clerk of the District Court. Before you sue, you will want to consider these factors. First, decide whether or not you should file. Then look at the mechanics of how to file the lawsuit. Finally, be sure to use a proper service of process which is a legal term a proper way to deliver legal documents to the person involved. I’ll go through all these details with you in the article. I will also add a form pretty typical of petitions filed in personal injury lawsuits. Other types of lawsuits would be similar.
Should I File a Personal Injury Lawsuit?
You start by deciding whether or not you should sue by, first, looking at whether or not your time limits have expired. There are specific statutes of limitations or time limits for different lawsuits, and you want to make sure that you get your case on file before the time limit expires.
Whose Fault Was It?
You also need to consider whether you have a good liability claim, meaning it is clear that the potential defendant has violated his duty. For example, in a typical auto accident case, you would examine whether the defendant violated a traffic law or the general duty of using reasonable care.
Were Your Injuries Caused By the Accident?
If the defendant violated the duty of care, then you need to check to see whether or not that violation or fault has caused actual injuries or damages. The injuries may include both physical harm to you, medical expenses, economic expenses, pain, and past and present. In Kansas auto accident cases, the medical bills have to exceed $2,000 to have a claim for personal pain and suffering. There is a limitation on collecting pain and suffering if you were not insured, although there are exceptions to that rule.
Can Someone Pay the Damages?
If there are damages caused by the fault, then you need to finally make sure that there’s someone who can pay the claim, which is usually an insurance company. If the individual’s uninsured, he’s still liable for the claim. You will need to make sure that he would have assets out of which to pay the claim. This is usually determined by an asset investigation by a private investigator. Finally, you want to consider, before you sue, the value of your claim and make sure that your claim value exceeds any settlement offer. The reason for that is if they offer a settlement close to what you will get through a court proceeding, you should settle. The expenses usually include a court filing fee, additional subpoena costs, deposition costs, expert witnesses, who typically charge for their time to come to testify, so going to trial suing can be very expensive.
What is Comparative Fault?
A jury in Kansas would be instructed by the judge to consider the liability and will be told at any percent of fault on you would reduce, reduce the verdict period. This is in accordance with K.S.A 60-248a. For example, if you had a $10,000 verdict and 10% of the fault on you, then that would reduce your recovery by a thousand dollars period. If your fault is greater than 50% or more, then you can’t make a recovery, and you would not want to be suing.
What Are the Mechanics of Filing the Lawsuit?
The next step would be to consider the mechanics of actually filing the lawsuit. The first step would be to complete your investigation, making sure you have photos and proper statements of witnesses. Often that’s included in the police accident report of an auto accident.
Send an initial demand letter to the potential defendant indicating that you intend to file the lawsuit. Ask if they have any defenses to notify you in writing within the next seven days. The reason for that is to avoid filing a frivolous lawsuit for which there are substantial penalties and attorney’s fees.
The Form for Filing a Personal Injury Lawsuit
The form of the petition is set out by statute. It involves stating facts to put the defendant on notice as to the nature of your claim. Finally, you need to decide whether you will ask for more or less than $75,000. If your demand exceeds 75,000, then the last part of your petition called the prayer would indicate that you’re seeking an amount over 75,000. And then, later under the court rules after the defendant has answered, you can specify your exact claim. If you’re asking for less than 75,000, you just put in that claim in the prayer portion of the petition. The physical filing of the petition usually now is electronically over the internet, and the web pages of the district courts have instructions on how to file electronically. If you are not hiring an attorney, then you must pay close attention as to the procedures the local Clerk has for suing on your own behalf. After the petition is on file, you will request a document called a summons from the Clerk of the court. A summons is the official court document served on the defendant, notifying the defendant they have a certain amount of time to file an answer.
Service of Process
After filing a personal injury lawsuit, your attorney will send the petition and summons by certified mail, which is considered a proper service and files a return of service with the Clerk along with a copy of the certified mail return receipt card.
You can also hire process servers to serve the petition and summons so you can get a personal service. There is service by return receipt mail, residential service, and personal service. You can run into difficulties if the actual service is challenged for not following the instructions set out in the statute. If you are suing a corporation, you must go to the secretary of state’s office web page and discover from their information online, who the registered agent for service processes for the corporation or L.L.C. If you’re serving an insurance company, you must serve a copy to the insurance commissioner.
Do I Need Help Filing a Personal Injury Lawsuit?
This can be a very complicated process and mistakes can be very costly. It is usually a good idea to at least consult with an attorney to make sure this is a good next step in your case. Most attorneys offer free case evaluations. Give me a call at 785-370-0001, and we can talk through the details of your situation and whether or not you should file a lawsuit.
To give you an idea of what a petition looks like here is a general form:
IN THE DISTRICT COURT OF _____________COUNTY, KANSAS
YOUR NAME, )
Plaintiff ) Case No. __________
DEFENDANT NAME, )
(Filed pursuant to K.S.A. Chapter 60)
COMES NOW, the plaintiff by and through his/her attorney, ___________________________, and for his/her cause of action and claim against the defendant, allege and state as follows:
- That this action is filed pursuant to Chapter 60, Kansas Statutes Annotated.
- That plaintiff is a resident of ____________ County, Kansas.
- That the defendant is a resident of ____________ County, Kansas and may be served by certified mail as set out in K.S.A. 60-303 at _______________, Topeka, KS 66605.
- That on or about the ______ day of ____________, 20_______, plaintiff was (LIST THE FACTS OF THE ACCIDENT AND WHY YOU BELIEVE THE OTHER PARTY IS AT FAULT)
- That as a direct and proximate result of the aforementioned negligence, the plaintiff suffered bodily injuries, past and future medical expenses, past and future pain and suffering, mental anguish, emotional distress, past and future loss of time, loss of wages, past and future loss of earnings capacity, loss of or impairment of services, permanent injury and permanent disability.
WHEREFORE, the plaintiff prays for judgment against the defendant for actual damages for a sum in excess of $75,000.00, costs, and for such other and further relief as the court may deem just and equitable.
YOUR SIGNATURE OR YOUR ATTORNEYS
DEMAND FOR JURY TRIAL
COMES NOW, the plaintiff, and demands a trial by jury of twelve individuals.