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What to Do When You Are Being Sued

April 5, 2016

What To Do when You Are Being Sued

It is a fine Saturday morning and you are sitting at home getting ready for a day away from the toils and trouble of the work week when there is a knock on the door. You look out and see a stranger with a clip board standing outside. Hoping that it is a lottery official coming to tell you some great news you anxiously open the door. The man asks you your name which your name which you willing give. He hands you a stack of papers and advises: “You have been served.” Welcome to the world of litigation, you are being sued.

Being an attorney for over 30 years, I have no heart palpitations when I see a lawsuit come across my desk. Of course this is largely due not only to the fact that I have seen literally thousands of lawsuits in my career, both against my clients and those I have drafted, but also because it is not me that is the target of the lawsuit. However, many people who receive a lawsuit are being sued for the first time in their life, and understandably, it is a traumatic event.

What Is a Complaint?

All litigation begins with the filing of a complaint which is filed with the court by the person initiating the lawsuit, called the Plaintiff, and served on the parties being sued, called the Defendants. It is extremely important that the complaint is handled in a timely manner in that you only have 30 days AFTER the date you are served to file a response with the court. The 30 days includes weekend days. If the last day falls on a day that the court is closed, you have until the next day that the court is open.

If you were served by substituted service, meaning the summons and complaint were given to someone else in your household or place of business, and another copy was mailed to you, you have 40 days from the date of the mailing to file your response. BUT before you count on these extra 10 days, make sure the plaintiff’s proof of service says you were substitute served and not personally served.

What is a Summons?

A summons is just that — a notice from the court summoning you to court. It will set forth certain basic information: what court is involved (e.g. Orange Superior Court), the name of the case (the parties suing each other), a direction to file a written response with the court within thirty (30) days, a warning that if no response is filed, a default judgment will be entered and an admonition to consult an attorney.

What Should You Do?

Of course the easiest answer is to CALL ME and tell me you have been sued. As I said before, I have been involved in literally thousands of lawsuits of every type imaginable. I have represented businesses, foreign and domestic, and individuals in many different countries, states and jurisdictions. However, there are a few things you should also do:

1. Write down what day you were served.

This is a seemingly small item, but it is important for determining when your response is due. A variety of responses are possible. The most common is an Answer, which sets forth general or specific denials of the claims. However, it is also possible to challenge the court’s jurisdiction, to challenge the validity of the service of the complaint or to challenge the complaint as not setting forth a viable cause of action. These options need to be evaluated before filing an answer.

2. Collect all of your documents.

Gather together all of the documents relating to the issues related to the lawsuit. In a typical business litigation dispute, such as a breach of contract lawsuit, you will need to get together the contract, any invoices and payment records and all correspondence relating to the relationship. You must also obtain documents that are on the company’s servers and computers, including emails and calendars. If it involves an accident gather all of your insurance documents to see if you are covered for the loss alleged. This would be either your automobile or general liability policies for your home or business. What a lot of people do not know is that these policies can provide you coverage in situations that you would not expect. For instance, did you know that your homeowners policy may provide you coverage for hitting someone with a golf ball while playing golf? A thorough review of these policies is critical.

3. Write down what happened.

All of our memories fade once you are aware that you are being sued. Sit down and write down the facts as you remember them. However, if you are going to retain an attorney please consult the attorney FIRST before writing anything down as anything that you do write that is not requested by your attorney may be evidence in your case and required to be turned over to the opposing party.

4. Do not speak to the opposing attorney, party or insurance company.

It is very common for someone to call you to try to get information from you. I would not recommend that you do so without first speaking to an attorney. Anything you say to them can be used as evidence against you later.

Though the majority of lawsuits are settled prior to trial, they can be very complicated. This is particularly true in federal court where the court may be applying state law or vice versa, or one state applying the law of another. Lawsuits become additionally complicated as more parties become involved. Within a single lawsuit there can be any number of claims and defenses between any number of plaintiffs or defendants and as a Defendant you can assert a cross-claim against the Plaintiff and even bring additional parties into the suit.

As I often tell my clients, being sued will not kill you. However, if you let it, the stress from being sued can kill you. My advice: don’t panic, hire a good lawyer and let them do their job. It WILL work out, it may just take some time and effort.