By Matthew L. Kelsey
If you are extra special a local Sheriff’s Deputy handed you the paperwork. If you are merely average on the special scale it just came in the mail. It is usually only in the movies that a process server approaches you and delivers the famous line that “you’ve been served.” However it happened, now what should you do? The following are 7 steps to make sure your lawsuit story ends well.
This may not be the end of the world. No matter what the problem is or the level of your liability or guilt, it does not help you or your case to immediately become unhinged. Often, the lawsuit can be handled with minimal disruption to your life or business. Many lawsuits can be successfully defended and promptly beginning that defense in a calm and focused manner is what is necessary.
2) Read the paperwork. Then read it again.
If you have remained calm, and actually read the paperwork, you might learn that you really have not been sued, at least the way you thought. You or your business might have been served because you have an interest in someone else’s litigation. Maybe you have a judgment against John Doe and his bank is foreclosing on his property. The bank will add you as a defendant simply so that upon foreclosure they get clear title to John Doe’s property and your judgment lien on the property is extinguished. If there is no equity in John Doe’s home (likely not since he is going through foreclosure after all), your attorney may advise you not to assert your interest in the foreclosure case. You can just forget the whole thing and check being sued off your bucket list. That is on everyone’s bucket list, right?
If you have actually been sued, you need to read the paperwork to completely understand the allegations as soon as possible. Read it once, and then read it again. Go crazy and read it a third time. Once you have read the paperwork and understand the allegations, you can have an educated discussion with your lawyer about the allegations, risks involved, key facts, relevant documents, and evidence related to your defense, and your next steps.
3) Immediately Inform Your Lawyer.
Call your lawyer. Preferably, send them the paperwork too. If you have complied with the first two Steps, you can have an educated discussion with your lawyer about the lawsuit. Don’t put the paperwork in your desk drawer and assume the lawsuit will go away. It won’t. Your lawyer’s ability to help you may diminish by the day. In most cases, you have 20 to 30 days to respond to a lawsuit once you are served. You may need those days to prepare your defense with your attorney and adequately respond. If you fail to respond on time you may be prevented from defending the action altogether because a default judgment has been entered against you. Often default judgments can be set aside, but your attorney will have to prepare court filings and attend a hearing. Those actions will cost you money that is better spent actually defending your case. More importantly, you do not want to start your case by asking for forgiveness from the Judge.
4) Locate and Preserve Evidence.
Although the plaintiff has to prove their case, you also have to prepare to defend it. In a lawsuit, just because you said so doesn’t make it so. Evidence is the center of your defense. Whatever the form of the evidence, it is in your best interest to start gathering it and organizing it now. At a minimum, this will save your lawyer time down the road, which in turn saves you money. But more importantly, memories fade and documents get lost or deleted. It is essential that all evidence be preserved in its original format and any document retention policies you or your business may have be suspended so documents are not destroyed or deleted. Err on the side of caution when trying to determine whether something is relevant. Save it and talk to your lawyer about it. You may not know just how important a fact or document truly is.
5) Identify Witnesses and Obtain Statements.
This goes with Step 4. Memories fade. Make a list of potential witnesses. Ask them to record what they saw or know. Ask them to sign and date the document, as well as provide their contact information. Often, a lawsuit comes months or years after the incident. Consequently, witnesses may reside or work elsewhere. If your current business practice doesn’t already include retaining contact information for employees who move on (personal email addresses sometimes never change and are very valuable), change your business practice. Your lawyer will want to interview all key witnesses as part of your overall defense strategy. Your efforts, once again, will at least save your lawyer time and lower your litigation costs.
6) Be Careful About Who You Speak With Regarding The Lawsuit.
Clients sometimes have an impulse to call the opposing party in an attempt to resolve the dispute. Other times clients immediately call people to vent about the fact that they have been sued. Just stop. Call your lawyer. Communications with your attorney are privileged. On the other hand, other communications may not be protected and may be admitted as evidence against you. Limit discussions regarding your case to conversations with your attorney until you have discussed the matter fully.
Yes, this was Step 1. It is also Step 7 and something you have to keep in mind throughout your lawsuit. The case may take some time to resolve. Any loss of composure along the way may harm your case. We will be with you along the way.