Lawyering Basics Commencing A Civil Action 101
Article Date: Wednesday, June 30, 2010
Written By: Mark N. Kerkhoff
Every young lawyer in a litigation practice has faced this seemingly simple yet lurkingly daunting assignment: “file a complaint in the x case – the statute of limitations runs tomorrow.” What does this technically mean? How does a young lawyer properly “commence” an action? Young lawyers undoubtedly know that a complaint initiates a lawsuit, but, is it merely served on the putative “bad guy” and that’s it? Unfortunately, in North Carolina, it’s a bit more administratively complicated.
First and foremost, an attorney (or individual) must draft the complaint. This is intuitively the first step, but, young lawyers must first do their homework! Young lawyers must put in the “library time” when most lawyers do not – before a complaint is ever drafted and filed. A complaint is more than just allegations, it must legally satisfy Rule 12 by both alleging a legal claim already recognized by the law and alleging sufficient facts to fulfill each element of such claim. See N.C. R. Civ. P. 12. A tip from my own experience in both defense and plaintiff’s employment law litigation: research all similar reported cases where a “motion to dismiss” was filed. This “library time” and forethought will reveal potential deficiencies beyond the mere prima facie elements of a particular cause of action.
Once the complaint is properly drafted, the administrative filing and service process begins. Specific standardized forms must accompany the complaint and can be obtained from the North Carolina Court System’s website at http://www.nccourts.org /forms/FormSearch.asp
. These forms include a “civil summons,” form AOC-CV-100, and a “civil action cover sheet,” form AOC-CV-751, both of which must be attached to the complaint when filed. Be sure to check your local rules! They are available online at http://www.nccourts.org/courts/crs/policies/localrules/default.asp
. For instance, some counties require that you file a specific number (and, in some instances, a specific color) of forms. If you are confused about what is required, ask a clerk. Be nice! Most clerks will be exceptionally helpful (especially to young lawyers who have the sense to ask), but you need to understand that they are very busy and deserve a great deal of respect. Next, to officially “commence” the action for statute of limitations purposes, the civil summons, complaint, and cover sheet must be physically delivered to the clerk of court and “file stamped” with the proper filing date. Yes, young lawyers, this means the actual physical papers must be delivered to the clerk of court who will then “file stamp” them, evidencing official filing time, and then return the “file stamped” copies to the lawyer. Once the young lawyer receives a “file stamped” complaint and a dated summons is issued, copies of all papers must then be served on the opponent pursuant the Rules of Civil Procedure.
Last, it is worth discussing an all too common nightmare for the young lawyer: imagine it is 4:30 p.m. on a Friday afternoon. Due to one young associate’s uncanny attention to detail and thorough legal research, she discovers that her senior partner’s calculation of a statute of limitations actually runs today, not in one week, as she was initially told! The partner is at the firm’s condo golfing in the mountains. Once the associate overcomes a flashback to her previously chosen malpractice deductible, she realizes that the courthouse closes in 30 minutes. How can she officially “commence” the action in such a short amount of time?
A little known alternative that (may) save this young lawyer is Rule 3 of the Rules of Civil Procedure. See N.C. R. Civ. P. 3. In addition to officially “commencing” an action by filing a complaint, an action may alternatively be “commenced” if a special “civil summons to be served with order extending time to file complaint” is issued by the clerk of court, form AOC-CV-102, along with an “application and order extending time to file complaint,” form AOC-CV-101. In many circumstances, this unique provision can officially commence an action for statute of limitations purposes without the initial filing of a complaint. Only the proper forms are needed. Under Rule 3, the complaint must later be filed within twenty (20) days and a “delayed service of complaint,” form AOC-CV-103, must be additionally served with all papers. Although a risky maneuver that may not properly commence some causes of action, every young lawyer should be aware of Rule 3.
In the end, young lawyers must recognize that commencing a civil action is not merely the intuitive drafting of a complaint. It is also, however, not a complicated legal procedure that requires years of experience. Like most areas of the law, we as young lawyers can easily master this practical aspect of advocacy with hard work, research, and – most importantly – with preparation and organization. As my wise Professor of civil procedure once stated: “procedure trumps substance.” Quite true: the most righteous and just cause of action will fail if not properly commenced. An equally wise quote, however, sums up the refreshingly simple focus we as young lawyers must emphasize when commencing a civil action: “Organizing is what you do before you do something, so that when you do it, it is not all mixed up.”
Mark N. Kerkhoff is the Managing Member of MKN Employment Law Solutions, a Charlotte based law firm focusing exclusively on employment law litigation, HR consulting, and employment contracts across both North and South Carolina.
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