How to Make a Complaint

If a person is thinking of filing a legal complaint against another party, the first step is to determine what type of complaint they want to file. Basically, there are two types of complaints: criminal complaints and civil complaints.

What Is a Criminal Complaint?

Criminal complaints relate to violations of criminal law and are filed by a government agency. State criminal cases are prosecuted by local district attorneys. Federal criminal cases are prosecuted by attorneys in an office of the U.S. Attorney.

A person who believes they have been the victim of a crime cannot file a complaint themselves. They should report the crime to the police. Then the police work to identify the perpetrator. When they believe they have identified the right perpetrator, they bring the case to the local district attorney whose job it is to charge the perpetrator with the crime that fits the facts and bring them to justice.

The prosecution of a violation of a state criminal law typically begins after a person is arrested by law enforcement. After an arrest, the person arrested must appear in court at an arraignment where a judge informs them of the crime with which they have been charged.

Once the case is referred to a local district attorney, the district attorney must either hold a preliminary hearing or present the case to a grand jury for screening. Whether they do one or the other depends on the requirements of the law of the state in which the alleged crime was committed.

In a preliminary hearing, the state is required to present enough evidence in court to a judge to establish “probable cause” to believe that the defendant committed the crime charged and should be tried. The defendant cannot be required to stand trial unless the prosecutor can present sufficient evidence to establish probable cause.

A judge hears the state’s evidence and decides whether probable cause has been established. The defense is not required to present its own evidence but may do that to rebut the allegations against them. It is unusual, however, for the defendant to present evidence at a preliminary hearing. If the judge is not persuaded that the evidence is sufficient to establish probable cause, the judge dismisses the charges. If the judge is persuaded that there is probable cause, the prosecution proceeds.

Some states and the federal Department of Justice (DOJ) use grand juries and not preliminary hearings to perform a first screening of felony criminal charges. Misdemeanor charges do not have to be screened by a preliminary hearing or a grand jury.

In a federal felony criminal case, the U.S. Attorney presents evidence that a crime has been committed to a grand jury. The members of the grand jury are ordinary citizens who have been called on to serve on the grand jury. There is no judge, because the grand jury makes the decision as to whether the evidence establishes probable cause. If the grand jury finds probable cause, it issues an indictment, which is the document that formally charges the defendant with a crime or crimes. Then the defendant must stand trial for the charges.

If a person has been arrested by the Federal Bureau of Investigation (FBI), because they are suspected of committing a federal felony criminal offense, then the case would be referred to the appropriate office of the U.S. Attorney. Again, the U.S. Attorney would present evidence to show probable cause to a federal grand jury, which would decide whether or not the defendant should be indicted and tried.

In both state and federal criminal cases, the jury for the criminal trial court decides whether the evidence presented by the prosecution at the trial has proven the guilt of the person charged beyond a reasonable doubt.

What Are Civil Complaints?

A person can file a civil complaint if they feel that they are the victim of a civil wrong. Civil complaints can include any number of civil causes of action. For example, a civil complaint might allege any of the following civil causes of action:

• Breach of contract;
• Negligence;
• Strict product liability for injury caused by a defective product;
• Negligent or intentional infliction of emotional distress;
• Intentional torts, such as civil assault and battery, civil trespass, and the like;
• Fraudulent misrepresentation;
• Wrongful termination of employment;
• Insurance bad faith;
• Defamation;
• Workers’ Compensation.

Civil cases start with one party, the plaintiff in legal terminology, filing a complaint in a state or federal civil court against the person or other entity who has caused them injury, the defendant. Whether the person files in a federal court or a state court depends on the law of jurisdiction.

Do I Need Evidence to Support My Civil Complaint?

The filing of a complaint begins a process that culminates in a trial at which the plaintiff must prove the elements of the wrong that they have alleged in their complaint. The plaintiff must prove their case by a preponderance of the evidence. So, a plaintiff would not want to file a complaint unless they have the solid, persuasive evidence they need to prove their case.

If a plaintiff files a suit when they do not have any evidence to support their claims, they are likely to be unsuccessful and waste a lot of time and money. In addition, a court might sanction the person for filing a frivolous lawsuit and wasting the time and money of the court and the opposing party as well. A defendant may bring a malicious prosecution suit against the plaintiff if the plaintiff makes a claim that is not supported by evidence. Malicious prosecution is a civil claim for damages.

What Happens After a Criminal Complaint Is Filed?

The procedure that follows the filing of a complaint differs depending on whether the complaint is a criminal complaint versus a civil complaint.

After a criminal complaint has been filed, the prosecution gathers evidence to prove the defendant’s guilt and then proceeds to try the case in criminal court. The prosecution is legally obligated to share its evidence with the defendant, especially if the evidence tends to show the defendant’s innocence. So, for example, if the prosecution finds evidence that shows that there is another person who is suspected of committing the crime, this must be shared with the defendant.

The defendant would also be searching for evidence to establish a defense to the crime or to show that the prosecution’s evidence is suspect or not believable. For example, the defendant might in some way attack the credibility of a witness for the prosecution.

If an eyewitness identified the defendant as the perpetrator of the crime, the defendant would try to undermine the believability of an eyewitness identification. The defendant would question whether the eyewitness can really identify the defendant as the perpetrator. Perhaps the crime scene was in darkness, because it was nighttime. The witness may have viewed the perpetrator only briefly. So, given the circumstances, the defendant could suggest that it is doubtful that the identification is reliable.

Or, the defendant might produce evidence of an alibi in the form of a witness who can testify that they were with the defendant who was far away from the scene of the crime at the time the crime was committed. So, the defendant cannot be guilty, because they were nowhere near the scene when the crime happened.

What Happens After a Civil Complaint Is Filed?

After a civil complaint is filed, the defendant has an opportunity to object to it by filing a demurrer, or motion to dismiss for failure to state a claim. If successful, the demurrer or motion to dismiss, can eliminate some or all of the causes of action filed against the defendant.

The next phase is discovery, which is the process in which both sides gather evidence to either prove or defend their respective cases. The parties also make their evidence known to the other party and in this way, work toward settlement of the case before trial.

It is during this phase that interviews are conducted of potential witnesses and the depositions of the parties, witnesses and consulting experts are taken. Both sides also request production of any documents they may need to prove their case or establish a defense.

Before the case goes to trial, the court schedules a mandatory settlement conference. This is the final effort to settle the case before trial begins. If the parties cannot settle the case, it goes to trial.

Do I Need a Lawyer to File a Complaint?

A person does not have to be represented by an attorney in every civil case. If the amount of money at issue in a case is not great, a person might file their complaint in small claims court, which works in such a way that a person can represent themselves effectively.

But in a case in which the amount sought by the plaintiff is more than $25,000, a person files their complaint in a civil court of general jurisdiction. In a case such as this, a person wants to be represented by an experienced attorney.

An attorney has the knowledge and experience to navigate all of the rules of civil procedure that are involved in prosecuting a civil case. For example, the rules of civil procedure require a person to plead their claim in full in the beginning of their case or they may lose their ability to plead it in the future.

For example, a person might file a negligence claim against a grocery store for injuries they have suffered in a slip and fall. The person might forget to include a claim for lost wages stemming from the injury. If the person settles the case or wins at trial, they cannot ask for compensation for lost wages, because they did not allege lost wages and ask for damages to cover lost wages in their complaint. The time to do that has passed, so the claim would be lost.

Because of technicalities such as these, a person wants to consult an experienced civil trial lawyer for representation in a civil case with a value that is significant to them. A skilled attorney can help you minimize unnecessary extra costs and avoid fatal mistakes.