To start a lawsuit, you confirm you have a valid legal claim within the filing deadline, identify the right defendant and the right court, draft a complaint and summons, file them with the clerk and pay the filing fee, and then arrange for the defendant to be formally served. Here is how to start a lawsuit step by step, from the questions you need to answer before you file through what the defendant can do once the papers reach them.
Confirm You Have a Case Before You File
The threshold question is whether your situation fits a recognized legal claim, sometimes called a cause of action. That is the specific theory that entitles you to relief: breach of contract if someone failed to honor an agreement, negligence if someone’s carelessness injured you, fraud if you were deceived into a transaction. Each cause of action has elements you will eventually need to prove. If the facts don’t fit a recognized theory, a court has nothing to grant you, however unfair the situation feels.
Every claim also carries a filing deadline called a statute of limitations, and these deadlines vary by claim type and by state. Personal injury claims often allow two to three years from the date of injury. Breach of a written contract may allow four to six years in many states. Miss the deadline and the court will almost certainly dismiss the case regardless of its merits. If you aren’t sure how much time you have left, that question alone is worth a consultation with an attorney.
Think about collectability before you spend anything. A defendant is “judgment-proof” when they lack the assets, income, or insurance to pay a judgment. Suing someone with no ability to pay leaves you with a paper victory and nothing in your pocket, after filing fees, possibly attorney fees, and months of effort. A quick look at whether the defendant owns property, runs an active business, or carries relevant insurance can save you from that outcome.
If your dispute arises from a contract, check for a mandatory arbitration clause. Under the Federal Arbitration Act, a written agreement to resolve disputes through arbitration is enforceable, and a court will typically dismiss or stay a lawsuit covered by such a clause and send the parties to private arbitration instead.1Office of the Law Revision Counsel. 9 USC 2 – Validity, Irrevocability, and Enforcement of Agreements to Arbitrate Employment contracts, consumer agreements, and service contracts frequently include them. If yours does, filing a lawsuit may not be an option at all.
Consider a Demand Letter First
A demand letter is a written notice to the other side explaining what they owe you and why, with a deadline to resolve the matter before you file. It is not required in most situations, but it does several useful things at once. It creates a paper trail showing you tried to resolve the dispute in good faith. It gives the other side a concrete reason to settle, because nobody wants to pay an attorney to fight a case they could have resolved for less. And it occasionally works.
In some situations a demand letter is required by law before you can file. Certain state statutes and specific claim types require a prospective plaintiff to notify the other side and give them a chance to respond before a court will accept the case. Medical malpractice claims in many states, for example, require a pre-suit notice period. If a required demand letter isn’t sent, the court can dismiss the lawsuit on procedural grounds.
A strong demand letter states the facts briefly, identifies the legal theory supporting your claim, specifies the dollar amount or other remedy you want, and sets a clear deadline for response. Keep it factual and professional. The letter may end up as an exhibit at trial if the case proceeds.
Pick the Right Court
Choosing a court involves two separate questions: which court system has authority over your case, and which physical location within that system is proper.
State Court, Federal Court, or Small Claims
Most lawsuits belong in state court, which handles the majority of civil disputes: contract fights, personal injury claims, property disputes, and similar matters. Federal court has limited jurisdiction. You can file there if your case involves a federal law (federal question jurisdiction), or if you and the defendant are citizens of different states and the amount at stake exceeds $75,000.2Office of the Law Revision Counsel. 28 USC 1332 – Diversity of Citizenship; Amount in Controversy; Costs If neither applies, state court is your only option.
For smaller disputes, small claims court is faster, cheaper, and more informal. These courts handle cases up to a dollar limit that varies by state, ranging from a few thousand dollars to $25,000 depending on where you file. The tradeoff is that attorneys are restricted or prohibited in many small claims courts, and procedural rules are simplified. If your claim falls within the limit, small claims is almost always the better path. Filing fees are lower, cases move faster, and you won’t need to master formal litigation procedure.
Jurisdiction and Venue
Beyond picking the system, you need both jurisdiction and proper venue. Jurisdiction means the court has legal authority over the defendant, either because the defendant lives in the state, does business there, or the dispute arose there. Without personal jurisdiction over the defendant, anything the court orders is unenforceable.
Venue is the specific geographic location within the court system where you file. For federal cases, proper venue is generally the district where the defendant resides (if all defendants reside in the same state) or the district where a substantial part of the events giving rise to the claim occurred.3Office of the Law Revision Counsel. 28 US Code 1391 – Venue Generally State court venue rules follow a similar pattern, typically pointing to the county where the defendant lives or where the key events happened. Filing in the wrong venue won’t automatically kill your case, but the defendant can ask to have it transferred or dismissed, which costs you time.
Name the Right Defendant
Getting the defendant’s name wrong is one of the most common early mistakes, and it creates problems that are harder to fix than you would expect. If you’re suing a person, use their full legal name. If you’re suing a business, use the entity’s official legal name, the one registered with the state, not the trade name on the storefront. A company operating as “Downtown Auto Repair” might be legally registered as “J. Smith Enterprises, LLC,” and naming the wrong one can result in dismissal or an unenforceable judgment.
State business registries, usually maintained by the secretary of state, let you search for a company’s registered legal name. For a sole proprietorship, you typically name the individual owner “doing business as” the company name. For corporations and LLCs, every state requires the business to designate a registered agent: a person or service authorized to accept legal documents on the company’s behalf.4Legal Information Institute. Agent for Service of Process The registered agent’s name and address appear in the business registry and tell you where to direct service of process later.
Draft the Complaint and Summons
The complaint is the document that formally starts your lawsuit. It tells the court who you are, who you’re suing, what happened, and what you want. In federal court, the standard is a “short and plain statement” of your claim showing you’re entitled to relief, plus a demand for the specific relief you’re seeking.5Legal Information Institute. Federal Rules of Civil Procedure Rule 8 – General Rules of Pleading State courts follow broadly similar requirements, though the level of detail expected varies.
Every complaint opens with a caption, a header identifying the court, the parties, and a space for the case number the clerk will assign.6Legal Information Institute. Federal Rules of Civil Procedure Rule 10 – Form of Pleadings The body is typically organized in numbered paragraphs: a brief explanation of why this court has jurisdiction, the facts in chronological order, and the connection between those facts and one or more legal theories. For a breach of contract claim, you would describe the agreement, what the defendant promised to do, what they actually did or didn’t do, and how that failure caused you harm.
The complaint ends with a prayer for relief, where you spell out exactly what you want the court to do. That might be a specific dollar amount in damages, an order forcing the defendant to stop certain behavior (an injunction), or both. Being specific here matters. Courts can only grant what you ask for.
You also need a summons, a separate court form that notifies the defendant a lawsuit has been filed against them. The summons states the deadline to respond and warns that failing to respond can result in a default judgment.7Legal Information Institute. Federal Rules of Civil Procedure Rule 4 – Summons In federal court, you present the completed summons to the clerk, who signs and seals it and returns it to you for service.
File With the Clerk and Pay the Fee
Filing means delivering your complaint and summons to the court clerk’s office, either in person or through an electronic filing system. Many courts now require or strongly encourage e-filing. The clerk reviews your documents for basic formatting compliance, stamps the complaint as filed, assigns a case number, and issues the summons. You get back file-stamped copies carrying the official court stamp and case number, which serve as proof the case is active.
Every court charges a filing fee. In federal district court, the statutory filing fee for a civil case is $350.8Office of the Law Revision Counsel. 28 US Code 1914 – District Court; Filing and Miscellaneous Fees Administrative fees bring the total higher, and state court fees vary widely. Some charge under $100 for smaller matters, others charge several hundred dollars in courts of general jurisdiction. Small claims fees are generally the lowest.
If you can’t afford the filing fee, you can ask the court to waive it. In federal court, this is done through an application to proceed “in forma pauperis,” which requires an affidavit detailing your assets and financial situation and affirming that you cannot pay.9Office of the Law Revision Counsel. 28 USC 1915 – Proceedings In Forma Pauperis State courts have equivalent processes under different names. If approved, you proceed without paying filing fees and related court costs.
Serve the Defendant
Filing gets your case on the court’s docket. Serving the defendant is what brings them into it. Service of process is the formal procedure for delivering the filed complaint and summons, and courts take it seriously. Without proper service, the court has no power over the defendant and the case stalls.
Who Can Serve and How
You cannot serve the papers yourself. Service must be performed by someone at least 18 years old and not a party to the lawsuit. The most common options are the local sheriff’s department or a private process server. Personal delivery, physically handing the documents to the defendant, is the gold standard and is always acceptable. Many jurisdictions also allow leaving the documents with a responsible adult at the defendant’s home or workplace, or service by certified mail with a return receipt.
When suing a business, you typically serve the company’s registered agent. The registered agent’s address is public record in the state where the business is registered.
Deadlines and Proof of Service
Service must happen within a court-set deadline. In federal court, you have 90 days from the date the complaint was filed. Miss that window without good cause and the court can dismiss your case without prejudice, meaning you would need to refile.10United States Courts. Federal Rules of Civil Procedure – Rule 4(m) State court deadlines vary but follow the same principle.
After delivering the papers, the person who performed service completes a proof of service, sometimes called an affidavit of service or return of service. This document records when, where, and how the defendant was served, and it’s filed with the court as official evidence that the defendant received proper notice.
When the Defendant Cannot Be Found
Sometimes a defendant is hiding, has moved without leaving a forwarding address, or simply cannot be located through reasonable effort. In those situations you can ask the court for permission to serve by publication, running a notice in a local newspaper for a set period. Courts are reluctant to allow this method because it provides weaker notice than personal delivery, so you will typically need to show that you have exhausted other options first. If approved, the notice must run in a newspaper of general circulation in the area where the defendant was last known to reside.
What Happens After the Defendant Is Served
Once the defendant has been served, the ball is in their court. In federal cases, the defendant has 21 days to respond.11Legal Information Institute. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections; When and How Presented State deadlines vary but typically fall in a similar range. The response takes one of several forms.
- An answer, in which the defendant goes through the complaint paragraph by paragraph, admitting or denying each allegation, and may raise affirmative defenses: legal reasons they should win even if your facts are true.
- A motion to dismiss, asking the court to throw out your case on procedural or legal grounds. Common arguments include lack of jurisdiction, improper venue, or failure to state a valid legal claim.
- A counterclaim, in which the defendant files their own claim against you as part of their response, arguing that you owe them something too.
If the defendant does nothing — no answer and no motion within the deadline — you can ask the court to enter a default. The clerk records the failure to respond, and you then apply for a default judgment, which gives you what you asked for in your complaint without a trial. For claims seeking a specific dollar amount, the process can be straightforward. For everything else, the court may hold a hearing to determine the appropriate relief. Default judgments are not guaranteed, though; courts have broad discretion to set them aside if the defendant later shows up with a reasonable excuse.
What It Costs Beyond Filing
Filing fees are the entry price. If the case moves past the initial pleading stage, costs accumulate through discovery (exchanging documents and taking depositions), expert witnesses, and court reporter fees. Attorney fees are the largest expense for most litigants. Hourly rates for litigation attorneys average around $350 to $400 per hour nationally, and even a straightforward case can require dozens of hours of attorney time. Some attorneys take certain case types on contingency, typically personal injury, taking a percentage of any recovery (commonly a third to 40 percent) instead of charging by the hour.
You have the right to represent yourself in any civil case. Federal and state courts both allow self-represented (pro se) litigants, and many courts provide standardized complaint forms and self-help resources. Proceeding without an attorney in anything beyond small claims is risky. Courts hold pro se litigants to the same procedural rules as attorneys, and a misstep in discovery, evidence rules, or motion practice can cost you the case on technicalities that have nothing to do with the merits.
Filing a Claim You Can’t Back Up
Lawsuits carry a built-in accountability mechanism. Under Federal Rule of Civil Procedure 11, every document you file with the court is a certification that your claims are supported by existing law and that the facts have evidentiary support after reasonable investigation.12Legal Information Institute. Federal Rules of Civil Procedure Rule 11 – Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions If a court finds you filed a complaint for an improper purpose, to harass someone, drive up their costs, or pursue a claim you knew had no basis, it can impose sanctions. Those sanctions range from non-monetary directives to orders requiring you to pay the other side’s attorney fees. State courts have parallel rules with similar consequences. Before you file, make sure your claim is grounded in actual facts and a real legal theory.