“This Is My Rifle. There Are Many Like It, but This One Is Mine” — Litigation Basic Training, Part I: The Lawsuit

As the founder and leader of an employment law firm, Attorney Josh Van Kampen approaches litigation as a life-or-death situation — and losing isn’t an option.

The Three Phases of the Litigation Process

There are three phases to the litigation process: the lawsuit, the discovery phase, and the trial.

Litigation Phase #1: Filing Your Lawsuit

In the first of this three-part series on litigation, employment lawyer Josh covers everything you need to know about filing your lawsuit, starting with the most important part: the unconventional (yet highly effective) way he approaches writing the complaint’s introduction.

File Your Lawsuit With a Well-Written Complaint Introduction

“We write our introductions like an opening statement to a jury. So we figure out what our theme is early and we hit that theme, literally in the first paragraph of the complaint, and we’ll hit that theme all the way through to the jury trial, if we get there,” Josh says.

Once the introduction has been written, it’s time to file your lawsuit. Here, you have a choice between filing in a federal or a state courthouse, both of which have their pros and cons.

Do You Need A Lawyer to File a Lawsuit?

There might be times where you question if you even need a lawyer when filing a lawsuit. Josh compares taking a pro se approach (sans attorney, or on behalf of ones self) and the times when you really want an attorney’s expert opinion and know-how. That might be for instances like knowing how jury pools are pulled and which state judges might favor corporations over sympathizing with the individual’s case.

Learn How to Find the Right Employment Lawyer

What Happens After I File a Lawsuit With the Court?

After the lawsuit has been filed with the appropriate court and the summons have been served, it’s time for the employer to send their response.

While lawsuit filing isn’t the most exciting part of the process to Josh — he prefers the discovery phase — this phase can make or break your lawsuit.

As a highly experienced employment lawyer, Josh’s step-by-step process to filing your lawsuit ensures you won’t miss anything and the process runs smoothly.

Every Thing You Need to Know About Filing a Lawsuit

★    Write your complaint introduction like an opening statement to a jury — Josh says that writing a good introduction is the most important thing you can do, as it sets the theme for the lawsuit and ensures anyone reading it is fully informed of the situation by page two. It’s a bit of an unconventional method approach to writing complaints — which are usually written as dense legal prose rather than an engaging narrative — but it really helps frame the entire lawsuit.

★    Your lawsuit is likely better off in a state courthouse than a federal one — This all depends on the state you live in but according to Josh, “most lawyers, probably even nine out of 10, tell you that you’re better off in the state courthouse than you are in a federal courthouse.” Why? It mainly has to do with judges, as some may be more sympathetic to corporate interests instead of individual interests, as well as differences in how jury pools are pulled.

★    If you’re worried about your lawsuit being public record, don’t file it — Technically, you could try to file your lawsuit anonymously as a Jane or John Doe, but Josh says if you aren’t comfortable putting your name on it, you shouldn’t file the lawsuit. While it could get lost in the mix of the hundreds of lawsuits filed every week, there’s no guarantee that your lawsuit won’t pop up in a in a Google search for your name.

Podcast on How to File a Lawsuit

1:56 “We really approach litigation as a life-or-death sort of situation for our clients — that losing is not an option. I thought it was applicable to talk about essentially a boot camp because our clients are entering this arena that we fight on all the time, for the first time, usually just unwitting about what’s to come.”

4:43 Don’t overlook the complaint: Josh explains what you need to include in your complaint, how it serves as the outline for your entire lawsuit and the unique method he uses at his law firm to build the most effective complaint possible.

9:42 Knowing your audience: Josh explains how your audience is so much more than the judge assigned to your case, including everyone from the CEO of the company or the lead of a legal department of a bank. He also discusses how to appeal to this wide range of individuals.

10:04 “We’ve talked before in podcasts about the importance of breaking molds, and here, you break the mold when you write a lawsuit that reads like a jury opening statement in the first two pages. … It’s all about the first impressions, just like when you walk into a job interview and you wear a nice suit — the same goes for writing a nice complaint.”

12:30 Filing in state vs federal courthouses: Josh discusses the differences between state and federal courthouses, from differences in judges to jury pools to costs, and how to choose the best one for your lawsuit.

15:27 Obtaining and serving a summons: After filing your lawsuit, you’ll receive the summons, which is what you use to serve the defendant. Josh covers the best (and most cost-effective) way to serve your summons.

18:48 Lawsuits are not anonymous: If you’re worried about your lawsuit being public record, Josh talks about how you can’t really file a lawsuit anonymously. His advice? If you don’t want your name on it, don’t file your lawsuit.

19:18 The worry about being countersued: Josh discusses the prevalence of counterclaims being filed in his experience. While some people may be concerned about being countersued, filing a complaint is a constitutional right.

20:49 Speaking to the media: Media attention isn’t as common as people think. Regardless, Josh shares advice about what you should and shouldn’t do when speaking to the media about your lawsuit.

22:33 Employer response to your complaint: Josh discusses what happens after a lawsuit has been filed and served, including how companies respond to each portion of the complaint.

23:19 “Once again, why it’s so important to write your complaint well is that you don’t want to leave it vulnerable to a motion to dismiss. The motion to dismiss essentially argues there was some defect in the complaint, [and] that we don’t even get to go to the discovery phase or summary judgment phase.”

Contact A NC Lawyer for Employment Lawsuits

As the founder and leader of employment law firm Van Kampen Law, Josh Van Kampen settles employment disputes with fearlessness and unparalleled client advocacy. For more online resources and videos browse our website, or better yet, fill out our confidential client intake form or call (704) 247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case.

Words of wisdom: “We really approach litigation as a life-or-death sort of situation for our clients — losing is not an option.”

Follow & Connect With Josh

LinkedInTwitter

The Walking Papers is a bi-weekly podcast by Van Kampen Law, a plaintiff-side employment law firm based out of Charlotte, NC, this podcast aims to give listeners, who are on the wrong side of some sort of situation at work, practical advice on how to turn the tables on their employers.

This podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions.