If you’ve been served with legal documents and a lawsuit has been filed against you, what should you do next? Litigation can be extremely stressful, especially if you are not familiar with the process. This blog will outline the general steps you should take if you find yourself in the precarious situation of being a defendant in a lawsuit.
Being sued, for whatever reason, is never a comfortable situation to be in. But ignoring a summons and complaint won’t make a lawsuit disappear, and just makes things worse. Many people think the best course of action is to send an email or letter to try and resolve the dispute, but this can backfire if you inadvertently make an admission of liability or take other actions that may be harmful to defending the lawsuit. There are many deadlines and duties that are triggered by the lawsuit being served on you, so it is imperative that you act quickly so you don’t miss anything or have a default judgment taken against you for failure to timely defend the case.
You may be served with multiple documents, but two of the most important documents are the Summons and Complaint, which list the names of the plaintiff(s), defendant(s), and describe the basis of the lawsuit. These documents are very important because when they are served on you the clock starts running on your deadline to file a response to the lawsuit. It is also a good idea to review the Summons to make sure that it has been file stamped by the court, otherwise it is ineffective. For most civil lawsuits, you have thirty (30) calendar days to respond to a complaint from the date you are served, so you want to move quickly to evaluate your options and choose a course of action.
Once you are on notice of a pending lawsuit, allowing evidence to be lost or intentionally destroying it can not only be illegal, but also can damage your ability to make your case. It is a good idea to begin gathering and preserving all evidence that is relevant to the case right away and to be ready to provide this information to your attorney as soon as possible. You may also need to provide this information to others, such as your insurance carrier. Prolonged and expensive litigation can be often minimized or avoided if you have good record-keeping practices and can produce information that support your case early in the litigation.
One of the best things you can do once you’ve been sued is to immediately seek legal advice from an attorney who is knowledgeable in the specific area of law involved in your lawsuit who can advise you on your options and deadlines. Make a note of the date you are served and any other information that may be helpful to your case so that you can give your attorney this information. Sometimes, an attorney simply reaching out to the other side can lead to a quick resolution or settlement of the dispute.
Also, be careful about talking to anyone besides your attorney because anything you tell your attorney is confidential but if you involve third parties, you could lose the privilege and the other side could use such communication against you in litigation.
You have a few different options in responding to the lawsuit that an experienced attorney can advise you about. Your attorney will then contact the other side and if more time to prepare a response to the lawsuit, ask for an extension. It is customary to provide a short two-week extension and most opposing attorneys will agree to it.
If the other side does grant your request for an extension, make sure you get confirmation in writing and update your calendar with the new response deadline. Whether your case is filed in federal or state court will affect what options are available to you and the timing for your response. The two basic responses are to file an Answer or a Demurrer (or a Motion to Dismiss, if you are in Federal Court.
There are various different motions that you may file depending on the content of the documents you were served with. It is difficult to have a lawsuit dismissed at this stage because a demurrer challenges legal defects in the Complaint, but not the truthfulness of what is alleged in the Complaint. Common legal defects are failure to plead sufficient facts in the Complaint or filing a lawsuit after the statute of limitations has run (this means the time to file a lawsuit has expired). There are other grounds for such requests to the court, such as when the court lacks jurisdiction over you, when the case was filed in an improper court, or if the Summons and Complaint were not properly served on you. Your attorney can discuss the different options with you and help you determine which is the best course of action.
Note that if you file a demurrer, the plaintiff may choose to amend their complaint rather than oppose your motion. If this happens, the plaintiff must file and serve you with the amended complaint and you then get another thirty (30) calendar days to file a response to the amended complaint from the date you were served with the amended complaint. You then have the choice to file an Answer or another Motion challenging the amended complaint.
If there is no good basis to file a motion, your attorney should file an Answer responding to the allegations made against you in the Complaint. The Answer, is a document that must deny the allegations of the Complaint and plead any affirmative defenses that you may want to assert later in the litigation. Failure to properly allege your denials and affirmative defenses may waive them, so it is always best to have an attorney handle the filing of an Answer rather than doing it yourself.
It is important to know that if you have a cross-complaint against the party that filed the complaint against you, you must file it at the same time as the Answer or your right to bring a cross-claim, will be lost.
There are a lot of technical issues and expertise needed to defend against a lawsuit. You would not do surgery on yourself, so do not do legal surgery and call an attorney who can help properly defend you. Trying to deal with intricacies of a lawsuit by yourself is like doing surgery and could cause dire consequences.
Ghassemian Law Group has very experienced attorneys who can help you you’re your company when you get sued. Contact us here as you are served with a lawsuit so we have a better chance of properly defending you and guiding your case in the right direction.
This article is informational only and meant to provide guidance. It is not meant to be legal advice and it does not create an attorney-client relationship. For what to do in your specific situation, please consult with a qualified Construction Law attorney.
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