How to Process a Malpractice Claim Without a Lawyer
Taking on any lawsuit without a lawyer (pro se), is extremely difficult and risky to begin with. A malpractice claim, which could take years to fully prosecute, could easily become an armchair lawyer's worst nightmare. However, it is not impossible to go it alone, and there are advantages to being your own lawyer if you have the time and patience to do it right.
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Things You'll Need
- Computer
- Internet access
- Printer
- Scanner
- Legal document software
- Example pleadings
- PACER System password
- Expert Witness
Instructions
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Get ready for a brutal, punishing process, and set aside an office space where you can be completely comfortable waging the war ahead. A computer with Internet access is a necessity if you don't want to spend all day at the local law library.
You should have a printer and a scanner for important documents, such as billing statements for business malpractice and patient records for medical malpractice. Depending on the format of the pleadings in your particular jurisdiction, you may need special software to create your documents. Check the website for the courts you will be filing in. There will typically be links to guides and templates there for pro se attorneys. If the paperwork is pretty basic, you could also duplicate it in a word-processing program.
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Scour the Internet for information about your type of malpractice case and look for examples of similar litigation. Read as many complaints as you can, and try to search for claims in the specific state and locality where you will be filing suit.
Apply for a password to the PACER Service Center. Google "PACER" to find the home page, and fill out the paperwork to have a password sent to you. Once you have one you will be able to search that database for any previous cases against the individual or entity you'd like to sue. In certain circumstances, you can use your opponent's case history to benefit your case.
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Spend some time on the official website of the court system in which you'll be filing. Typically, wherever the most damage took place is where you will have to sue. You could also try going to the courthouse itself and asking the clerk's office for any documentation to assist pro se attorneys.
Research the local and federal rules of procedure and find out about the filing fees before you start drafting your complaint.
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Draft your complaint and supporting affidavit about your experience, using a model complaint as an example and altering it to fit your circumstances. Try to keep the information limited to how it relates legally to the case. Don't tell the judge a story. List the facts as they happened and provide a timeline of events.
Contact and consult with your expert witness. This is the person who will be able to point to and expose the flaws of whoever committed the malpractice. This person should be an expert in the field in question and know what decent, expert customer care is all about. Explain your situation to this person and work on an affidavit for him to sign that will accompany the complaint. A fee is generally required, but this is not a fee for the person to testify the way you want. It is a fee for his time in court and does not release the witness from a duty to speak the truth under oath. For these reasons, make absolutely sure your situation is really appropriate for a malpractice case and find out if your expert agrees with you or not before you hire the person for the trial.
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File your complaint and affidavits at the courthouse or send them by snail mail. You also will have to serve them on your opposition through a process server. You can find one in the phone book.
For the next few months or years, pre-trial motions will be traded and it might seem like the trial date might never arrive. If you are well-trained and prepared for this legal trench warfare, being your own lawyer could break the opposition's piggy bank in this phase. It could become much cheaper to settle than for your adversary to continue fighting the inevitable.
If you do get to trial, you will get to interview witnesses and cross examine any witnesses provided by the defense. At the conclusion of the trial, a judge or jury will decide your claim if a settlement is not reached. If things don't go your way you could still appeal from there. Just remember the appeals process is very technical and involved.
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Tips & Warnings
Understandably, this entire process can take years. It is best to purchase an all-inclusive program or guide to being your own lawyer, like the one available at www.jurisdictionary.com.
