Finally!!! You’ve done it!
You’ve planned your lawsuit. Well part of it anyway.
You’ve identified the parties. You’ve picked the court where you want to file your lawsuit.
Now all you need is a lawsuit.
Or more specifically, you need a complaint to file and serve.
This is the fun part. Where you actually get to sit down and work on a complaint. But the problem is, there’s still some planning to do.
You have to identify the causes of action that you want to include.
Now, to be clear, this post is not about drafting a complaint. We’ll come to that in due time. This is about sitting down and figuring out what you’re going to sue for. What causes of action are you going to pursue?
Obviously, the first thing we need to do is to define a cause of action. Black’s Law Dictionary defines a cause of action as “a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”
I think you’ll agree that that definition is about as clear as mud. Nothing unusual there – people love legal jargon. The Miriam Webster dictionary does a little better job, stating that a cause of action is “the grounds (such as violation of a right) that entitle a plaintiff to bring a suit”.
To get a real world handle on it, think of a cause of action as a set of facts that support a legal theory of recovery. Negligence (as in the guy that rear-ended you) is a cause of action. Breach of contract is a cause of action, as are things such as fraud, defamation, trespass, etc., etc.
A cause of action consists of elements which must be established in order for a plaintiff to recover. For example the elements of a cause of action for breach of contract are:
– The existence of a contract;
– Performance by the plaintiff or some justification for nonperformance;
– Failure to perform the contract by the defendant; and,
– Resulting damages to the plaintiff.
All of those elements must be established. When a complaint for breach of contract is prepared, it must include facts that establish each and every element of the cause of action, and at trial, each and every element of the cause of action must be proven.
Finally, a lawsuit can include more than one cause of action. You might have a claim for breach of contract, which might include negligence, breach of warranty, unfair or deceptive trade practices and so forth.
In planning your lawsuit it is important to identify all of the causes of action that might apply, then to determine which of those you will be able to establish. That means doing research to determine all of the elements of any cause of action and making sure that you can establish each and every one of those elements.
Now in some lawsuits this planning process will be very simple. You’re stopped at a traffic light and you get hit from behind. Negligence is your cause of action. But not everything is that simple. You might have a lawsuit with multiple defendants and multiple causes of action, not all of which may apply to every defendant. Lawsuits like this can often require a diagram or other display to clearly identify the parties, the causes of action and which apply to which.
But bottom line – it is the planning which is critical. To toss together a complaint with an improper causes of action, or missing causes of action is just going to end up being a mess.
Planning is paramount!