A complaint or petition is a document filed with the Court to initiate a case by one party against another party for relief. It is intended to give the defendant notice of the claim being made. The fee for filing a civil complaint varies according to the court in which you file your case and sometimes by the type of action filed with the court. The fees are set out in the state statutes. When filing a case, it is a good idea to contact the clerk of the court in the jurisdiction in which the case is going to be filed to obtain an accurate quote of the fees required for filing.
The complaint should be written, filed and date stamped by the Clerk of Court, and a copy of the complaint must be provided to the defendant. Some complaints are required to be verified (sworn to under oath) such as domestic and probate court cases. Notice of the complaint/petition may be served on the defendant by one of the following types of process servers: the sheriff or marshal, an authorized private process server, by publication or by a letter requesting a waiver of service by the defendant. A pro se litigant should consult the statutes to determine the proper mode of service.
Serving the opposing party with a complaint or petition
If a defendant does not waive service, then the Sheriff or Marshal or a private process server approved by the Court will attempt to serve your complaint on the defendant. You must provide a stamped copy of the filed complaint to the Sheriff, Marshal, or private process server along with an entry of service form. This paperwork should provide the server the name of the person to be served and the address where service should be delivered. You must pay the applicable fee for service. There is also a process for asking the opposing party to waive service found in the Official Code of Georgia Annotated 9-11-4
(d and l). If as a defendant you fail to respond to this waiver request you may have to pay the costs of service.
The better the information you can provide the server about the location of the opposing party, the quicker service will be accomplished. The Georgia Code generally states that the Sheriff should make an attempt to serve the complaint within five days of receipt of the copy of the complaint and service form.
If you are unable to obtain either service or waiver of service by the opposing party, your case may be dismissed without prejudice. A dismissal without prejudice does not stop the plaintiff from re-filing the claim and proceeding as long as the claim is made timely (within the statute of limitations) and service can be secured.
Blank or standard forms for filing a complaint/petition
Some legal action forms are included in the Georgia Code or in the Uniform Court Rules. You may also find standard or example forms for many types of cases filed in the Magistrate, Juvenile, and Probate Courts. Other example forms may be located in form books available in law school libraries, county libraries, or on local court web sites.
See the Courts page to determine which court has jurisdiction to handle your civil case. In most cases, you must file your complaint in the county in which the opposing party resides. However, you are responsible for determining the proper venue or county in which to file your case. You will need to research the state law to determine the proper county in which to file your case.
Answering a complaint
An answer is your response to the complaint or petition filed by the plaintiff. It sets forth your position on the claims made by the plaintiff and allows you to deny the claims.
You must file a written answer to the complaint admitting or denying, in part or in whole, the claims made by the plaintiff and set forth a legal defense. If you, the defendant, fail to respond or if the response is not received by the court before the due date, you may automatically lose the case without receiving the opportunity to present your case in court. The court may enter a default judgment (judgment entered against a party who has failed to answer or defend against a claim that has been brought by another party) against you, which the plaintiff can enforce by court order. Your property may be sold or wages garnished (set aside) to pay the judgment.
Your answer must be in writing and filed with the Clerk of Court either by mail or personal delivery, and you must mail a copy to the opposing party or to the attorney of the opposing party within the time permitted by law. If a party is represented by an attorney, you should not contact the party directly, but instead speak with the party's legal representative. Contacting the attorney of the opposing party does not substitute for a written answer to the complaint.
Usually, if the complaint was required to be verified (sworn to under oath), the answer must also be verified. You may need to research the time limitations on filing an answer with the court at your local county law library. A filed, stamped copy must then be provided or served on the opposing party.
Hiring an attorney
The decision to hire an attorney is up to the individual. By law, all Georgia citizens are entitled to represent themselves in court. However, the procedures in court can be complicated and pro se litigants frequently lose cases because they do not understand courtroom procedures. The advice or representation of an attorney would probably be useful and could make the difference between winning and losing a case.
Note: A corporation must be represented by an attorney in all trial courts other than Magistrate Court.
Free or reduced legal assistance
In civil litigation cases, some people may qualify for free or reduced-fee legal assistance from organizations such as the Atlanta Legal Aid, Georgia Legal Services, or a local Pro Bono Project. You may be able to obtain from some of the clerks of court lists of attorneys who will provide services based on a sliding scale related to your income.
Court employees may not provide any party with legal advice.
No party to any case is allowed to discuss their case with the judge on an individual basis except in the presence of the opposing party or at a scheduled hearing or trial for which the opposing party had notice, but failed to appear.
Waiver of court costs
You can apply to file your case in forma pauperis (an affidavit made by an indigent person seeking free public assistance) to have the court costs waived. This requires completion of a financial affidavit.
In some courts, cases are placed on a trial calendar within a specific time set by statute. In other courts, cases are scheduled for trial within a certain amount of time following the filing of an answer. Still other courts will schedule cases on the court calendar following a request by one or more of the parties for scheduling on the court calendar. Be aware of how your case will be scheduled by asking the Clerk of Court in which your case is filed.
The Court will notify all involved parties of dates and times of court appearances. This notice may be mailed by the Court, or in some instances, by the opposing party. Some courts publish their trial calendars (a notice of the cases in which a hearing or trial is scheduled) in a particular newspaper to ensure that all interested parties are notified, and you may not receive a mailed notice from the court. You should ask the clerk how you will receive notice from the court.
If the case goes to trial, you are responsible for making sure that witnesses who are to testify on your behalf and other evidence you plan to present, such as documents or audio tapes, are available for trial. You may obtain subpoenas from the court to compel witnesses to attend court, provide documents, and other physical evidence for court.
Obtaining a Continuance
You may want to consult with the opposing party about whether or not a continuance is acceptable. If both parties agree on a continuance, then let the judge's staff (calendar clerk or Clerk of Court) know as soon as possible that you have a conflict and a written motion will probably not be required by the affected party. But if the opposing party objects to a continuance, a motion may have to be filed stating why the continuance is needed. Whether a continuance is granted is within the discretion of the judge.
Any party may ask for a continuance in a case. The Court will make a ruling on the request. All other parties in the case should be given notice of the request for a continuance. If you are going to ask for a continuance, you should first contact the other parties and then the judge's office - not the judge directly - to notify them of your request.
Final judgment/Final order
Once a case has been heard and both parties have rested their case, the Court will issue a decision as soon as possible. In most cases, there is no specific time limit for a judge to give a decision.
The practice of preparing a final order varies. In some cases, such as uncontested divorces, it is routine for the plaintiff to prepare the final order. In other cases, the judge will either instruct one party to prepare the order or the judge will announce the judge's intention to prepare the order. If you have questions about whether you should prepare an order, you should ask the judge at the time the judge rules on the case.