To File a Lawsuit: Asserting Your Rights Made Easy

Definition: Lawsuit

A legal lawsuit is filed with the court with the aim of asserting one's rights through the law and in the form of a court proceeding. Everyone has the right to file a lawsuit. Minors must be represented by their parents or legal guardians. Similarly, a company can file a lawsuit. In this case, it is referred to as a legal entity and is represented in court by its owners.

Legally, there are various types of legal lawsuits. Within civil cases, distinctions are made between claims for performance, declaratory judgments, and claims for alteration. The latter is filed when the plaintiff argues for a changed legal situation compared to the current one, in their favor.

The Path of a Lawsuit

Under Swiss civil procedural law, there is what's known as the simplified procedure. This can be utilized when the dispute value is under CHF 30,000. It's often used in cases such as labor or tenancy disputes. We outline the process of a lawsuit using this procedure.

1. Conciliation Procedure 

The first step leads to a conciliation authority. If the conciliation attempt in this procedure fails, you'll receive authorization to proceed with a lawsuit. There are only a few exceptions where conciliation is not necessary (e.g., divorces or if the plaintiff resides abroad).

2. Consultation with a Lawyer

You might be wondering if you need a lawyer at this point. Indeed, this decision is up to you because there is no requirement for legal representation in simple procedures. However, in making this decision, you should consider two aspects:

3. Pre-litigation Consultation

Before filing a lawsuit, you should know your realistic chances of winning the case. You need an estimate of the legal costs to assess whether a lawsuit is worthwhile. A specialized lawyer can quickly and easily answer all your questions about this. They can either save you from an expensive legal process or assist you in preparing for a lawsuit.

4. Representation in Court

The decision to represent yourself in court depends on the complexity of the case but also on the dispute value. Does this balance out with the lawyer's fees? If the process goes well for you, it's possible that you may be partially or fully reimbursed for the legal and procedural costs. 

3. Statement of Claim and Judicial Review

Within the simplified procedure, the statement of claim can be submitted in writing or orally. The following contents are legally required:

• Name and contact details of the plaintiff and defendant
• Description of the subject of the dispute, if applicable, the dispute value
• Objective of the claim from the plaintiff's perspective
• Date and signature

Optional: 

• Mention of evidence or witnesses
• Further background information

Optional, but with significant effect: 

• Request for party compensation (request for the opposing party to cover costs)

If you forget to make this last request, the opposing party may not be awarded the process costs, even if you win the case. 

The statement of claim can significantly contribute to the outcome of the lawsuit. Therefore, it must be precise and logically convincing. Essential backgrounds should be included succinctly.

Depending on the type (well-founded or unfounded statement of claim), content, and scope, the claim is now examined. In a well-founded claim, the defendant is given the opportunity to submit a preliminary statement. Subsequently, either a direct summons to the main hearing is issued, further written correspondence takes place, or there is an additional instruction hearing. Whether evidence may be presented during the preliminary or only at the main hearing is decided by the judge.

4. Main Hearing 

The course of the main hearing depends on whether a direct summons took place or preliminary statements need to be submitted. The scope of opportunities for both plaintiff and defendant to present arguments and evidence directly in court also depends on this. At the end of the main hearing, both sides are allowed to make final speeches twice. This means they can address the charges and evidence. New arguments and evidence, called novelties, can only be introduced within a limited time frame. This timeframe also depends on the type of preliminary decision.

Both parties can also waive a main hearing. However, in this case, neither evidence examination nor witness summons can take place.

At the end of the hearing, there is the judicial decision – the judgment.

Costs, Cost Coverage, and Aid

• Advance Payment

In the case of a simple procedure, the judge can demand an advance payment from the plaintiff at most in cases of pecuniary disputes. In the case of an ordinary procedure, advance payment is much more common. In some cases, a security payment may also be required. For example, if there is a well-founded suspicion of the defendant's insolvency or if they do not reside in Switzerland.

• Cost Coverage

Generally, the loser bears the procedural costs as well as a cantonal compensation flat rate. The exact cost distribution varies depending on the type, scope, and background of the case and the parties involved.

The conciliation procedure is also subject to charges and is only free of charge in exceptional cases. The specific exceptions are specified in the Swiss Civil Procedure Code (CPC). 

• Free Legal Aid

It is possible to apply for free legal aid. The basic requirement is a good prognosis for success and that you are legally considered indigent. This requires disclosure of your financial situation. If the application is granted after careful examination, the procedural costs and, if necessary, the payment of a lawyer will be covered. However, the payment of the subject of the dispute in case of losing the lawsuit is not covered.

• Legal Expenses Insurance

Legal expenses insurance must be taken out in advance. Which disputes and to what extent they cover in terms of costs varies greatly. When taking out insurance, pay attention to the fine print. If you wish to use it, you must make a coverage request. Your insurance will then assess the prospects of the case and tell you whether and to what extent your legal expenses insurance can support you. 

• Lawyer Fees

Lawyer fees are calculated based on various criteria, such as the complexity of your case and the amount in dispute. Some lawyers have a fixed hourly rate, while others offer flat-rate models as well. Swiss lawyers are prohibited from working solely on a success fee basis. However, a success fee is permissible after prior agreement with the client.

Some lawyers offer free initial consultations, while others charge for them on an hourly basis. Pay attention to the disclosure of all additional costs, such as for research, phone calls, and whether VAT is included in the price. If you are unsure after receiving the invoice whether the rate is too high, the lawyer's association's fee commission can help. However, the easiest way is always an open and fearless initial conversation with the potential lawyer. Reputable lawyers make their costs transparent and address uncertainties immediately.

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