How to File a Tort Claim

Once you reach out to the Guardian Legal Network, we take care of all the communication and paperwork you need to get justice. At the same time, we believe strongly that it’s important for you to know what goes on behind the scenes as we prepare your tort claim.

Below, you’ll find a step-by-step explanation of how to file a tort claim, so you know what to expect and what’s going on as we work on your behalf, or what to do if you choose to manage the tort claim process yourself.

What is a Tort Claim?

A tort claim is a type of civil claim, which is a lawsuit with the goal of holding one person or business accountable for the harm or wrongdoing they did to someone else. This is not the same as a criminal case. Criminal cases are when a government (local, state, or federal) holds a person accountable for—allegedly—breaking the law.

Torts can involve wrongs that come from criminal activity (called in these instances an “intentional tort”) or civil wrongs, which are not necessarily criminal offenses. Torts include:

• Intentional torts (ex: assault, battery, false imprisonment, intentional infliction of emotional distress)
• Property torts (ex: trespass to land, trespass to chattels, conversion, replevin)
• Dignitary torts (defamation, invasion of privacy, abuse of process, malicious prosecution)
• Economic torts (ex: fraud, conspiracy, tortious interference)
• Nuisance
• Negligence
• Duty to visitors (ex: attractive nuisance)
• Strict liability (ex: product liability, ultra-hazardous activity)

A tort claim has four elements. To win a lawsuit for a tort claim, all four of these elements must be present:

• Duty – The defendant (the business oftentimes) must have had a legal duty to act in a certain way.
• Breach – The defendant must have breached their duty.
• Injury – You (the plaintiff) must have a qualifying injury.
• Causation – Your injury must have resulted from the defendant’s breach of their duty. In other words, you will need to prove that your injury was caused by the (in)actions of the defendant within a certain timeframe.

In summary, you can file a tort claim if you’ve experienced harm or injury that was caused by a party (a person or corporation) when there was an expectation that that party would keep you safe.

The party can breach their duty either through direct action or through not doing something that they should do. This is often the case in negligence situations, like when a corporation does not warn consumers about potentially harmful chemicals in products. Torts provide relief to victims, accountability for guilty parties, and help prevent the guilty company and others like them from doing similar things in the future.

Examples of common tort claims include car accidents, defective hip replacements, defective drugs such as Zantac, and defective products such as talcum powder that cause cancer.

What is the Tort Claim Process?

The exact tort claim process will vary based on your jurisdiction. Jurisdiction is the power that has the authority to decide on legal cases and is often based on your location and the type of wrong committed. This can be a local jurisdiction or a federal one.

No matter where you file the case, the process has the same basic steps:

1. Case preparation
2. Filing your lawsuit
3. Litigation

If you choose to represent yourself, you will have to complete all of these steps on your own. If you choose to have an attorney represent you, they will handle these steps for you. If you do not already have access to an attorney, assistance organizations like the Guardian Legal Network work to connect you to the right lawyer and support system for your particular situation and guide you through the complicated tort legal process.

Case Preparation

Your personal involvement with the preparation of the case will vary greatly depending on whether you’re handling the case yourself or if you have the help of an organization or attorney.

Regardless, demand letters are often sent at the beginning of tort claims to the person or corporation you want to sue. These letters explain the facts of the incident and why you, the victim, feel entitled to justice for the pain they’ve put you through. Demand letters notify the harming party that the victim intends to file a lawsuit unless a response or payment is received by a specific date.

While victims wait for a response, research is done on the applicable law, including the statute of limitations. Statutes of limitations are laws set by each state that specify how much time you have after a specific incident to file a particular type of lawsuit.

For example, your state might only allow you one year to file a medical malpractice suit or two years to file a personal injury lawsuit. It’s important that these deadlines are met and for all parties to be aware of when the harm was done so that your claim can be verified as still falling within the statute of limitations.

Filing Your Lawsuit

When it comes to the actual work of filing the tort claim, the experts here at the Guardian Legal Network highly recommend you connect, either directly or through other aid organizations, with an attorney. The tort claim process is long, complicated, and tedious. Cases may be dismissed if papers are filed incorrectly, and you may not get the justice you deserve if the case isn’t handled by an expert.

Filings begin by verifying the correct forms that will be used in the case. These forms vary per case and are best identified and handled by your lawyer. If forms are missing or difficult to locate, previous complaints filed in the same court can be used as a template to format a new complaint on your behalf.

From there, the official complaint is drafted. This contains information about who you are, who you are suing, and your tort claim. A summons is also created, which notifies the defendant that you are suing them and gives them an opportunity to respond. All documents are signed and dated, and copies are made. Then, the tort is officially filed with the court.

The party who initiated the tort (you, the plaintiff) will be responsible for paying filing fees when a complaint is filed. The court often offers to waive the fee for individuals who cannot afford it.

After the tort claim has been filed, the defendant is served, meaning they’re given notice of the case. Depending on the court, some courts will do this on your behalf, or your lawyer will need to serve the defendant.

Litigation

Once your lawsuit has been filed, you will move into the litigation (legal process/steps) phase of your case. During this phase, the defendant may file a response to your complaint or file motions, such as a motion (request) to dismiss your case. You will have to reply to the motions within a specific time frame.

You will also go through the discovery process, where you will exchange information with the defendant about the case and the evidence you intend to present at trial. Typical discovery requests include interrogatories (written questions that must be answered), requests for admission, requests for production, and depositions.

Some courts may require you to participate in mediation or another type of alternative to trial that should help you reach a resolution. If you can’t settle your dispute during this time, you will proceed to trial.

If you’ve never been through the legal system before, the tort claim process may seem overwhelming. It’s always a good idea to consult with an experienced attorney in dealing with your specific case. The Guardian Legal Network can put you in touch with the right attorney to handle your claim. To get started, contact us today.

Where Can I File a Tort Claim?

In many cases, you will file your lawsuit in the county where the incident occurred, or where the party you want to sue lives or does business. If the incident took place in a different location than where the defendant does business, you might have a choice of where to file your tort claim.

The court you choose may also depend on how much your potential claim is worth. Depending on the amount of your potential tort claim, you may have to file your lawsuit in small claims, state, or federal court. You might also have multiple options, and you can choose where you want to file your claim.

If you have questions about where you should file your tort claim, you should speak with an experienced attorney.

We’ll Help You Get Started

Rather than worry about each of these steps yourself, the Guardian Legal Network’s white glove services manage the tort claim process on your behalf. Once you contact our team, we will work with you as you seek justice, guiding you through the complicated process and answering your questions at every turn. It’s important for you to know how to file a tort claim, so you are aware of the actions taken on your behalf, but that doesn’t mean you need to do them all yourself.

The Guardian Legal Network believes that victims who have been harmed should have a reliable support system to help them secure justice. We strive to provide victims with the resources and legal counsel they need to pursue a lawsuit to compensate them for their pain and suffering. We are committed to finding you the right law firm to handle your case. Contact us today to start the tort claim process.

Sources

• Congressional Research Service. “Introduction to Tort Law – Congress.” CRS Reports, Congress, 13 Aug. 2019, https://crsreports.congress.gov/product/pdf/IF/IF11291.
• LexisNexis. “Tort and Negligence Claims—Overview.” Welcome to LexisNexis, LexisNexis, https://www.lexisnexis.com/uk/lexispsl/disputeresolution/document/393747/59PM-BBC1-F18B-72Y2-00000-00/Tort,-negligence-and-nuisance-claims%E2%80%94overview.