Even though lawsuits are rarely surprise attacks, it’s still unnerving when that process server knocks on your door and tells you ‘you’ve been served.’ Depending on your demeanor, your immediate reaction is either anger, fear, anxiety, or a cocktail of the three. Maybe you received a demand letter (or some type of angry letter) a few months ago and you responded with stern retort. You may have thought – haven’t heard anything back so all must be good… I won! Well, now you know that’s not the truth. Generally, a demand letter is either a statutory prerequisite to the lawsuit or a simple formality to give you a chance to pay up before the lawsuit is filed. Nevertheless, what should you do once you have that packet of papers handed to you from the process server.
Step One – Calm Down
Do not, and I repeat DO NOT pick up the phone and call up the Plaintiff or the Plaintiff’s attorney in a rage. This will not help your case. Absolutely nothing good can come from it. So, take the packet and set it aside for a few minutes. Take a breath, go for a walk, whatever you need to do to think clearly.
Step Two – Read Everything
Sit down and see what the packet contains. Usually, here’s what you’re going to see:
- Summons – this explains to whom you need to serve a response and how long you have to do so. Usually it will list an attorney and it will tell you that you have 20 days… and that’s 20 calendar days. If the 20th day falls on a Saturday or Sunday then sure it will role to Monday, but don’t cut it that close. Your response will also have to be filed with the Clerk of Court.
- Complaint – This is a key document… this is the lawsuit. Read it closely. If you don’t understand it, that’s fine, but read all facts that are stated in the paragraphs. Depending on the cause of action, the legal side of things can be very complex, but the facts will be the determining factor. You need to know what’s been said and you need to note what’s true and what’s not (or at least what you disagree with).
- Exhibits – Technically, the exhibits are part of the Complaint. Read everything closely. Look at the dates, the signatures, the documents. Do you recognize the documents? Do you recognize your signature? Are the dates correct? Does anything look altered? Again, you need to determine the facts here.
Step Three – Find a Lawyer
If you’ve done your due diligence setting up your business, you should at least have an attorney that you’ve worked with to set everything up. Now, maybe that attorney doesn’t practice litigation, but he or she should be able to help you find one. However, let’s assume that you did everything on your own or that you hate your first attorney, what to do? Ask other business owners, check out your local chamber of commerce, do research online. If you’re not going on a personal referral, I would advise making a few appointments before choosing an attorney. Litigation can be a long and expensive endeavor, choose carefully. Find an attorney that fits, after all there are over 90,000 attorneys in Florida! While daunting, this is probably your most important step. Act quickly – remember you only have 20 days to respond.
Step Four – Don’t Lie to Your Attorney
Once you pick your attorney, he or she is going to hound you for information. It will be annoying. It will be exhausting. It will seem ridiculous. It is not. And some of the questions will likely be personal, and, perhaps, even offensive. That said, keep in mind that a skillful litigation attorney not only builds a defense for you, but anticipates the offence… a.k.a he or she creates offensive strategies and defenses to combat. If you lie, omit, or “paint” the truth in a better light, you have hurt your case. Fight the urge to do this and if you find that you have, fix it as soon as possible. Most attorneys are forgiving folks (assuming this isn’t a pattern for you), but that’s not really even the reason… the reason is that it gives the attorney a chance to fix any lies that made it to court. The Judge is generally unforgiving, and you do not want on his or her bad side. Lying in court is perjury and it can land you with hefty sanctions or, at worst, in jail. So, be honest, and be part of the team.
Step Five – Understand the End in the Beginning
Have your attorney explain (and be ready for said explanation) the possible outcomes of the litigation. Usually there are more than you would think – it may not be limited to a win/loss situation. You don’t have to agree with any of the outcomes in the beginning, but you need to know what you’re facing in the best and worst case scenarios and everything in between. With that knowledge you can manage your anxiety and make preparation plans for the worst case scenario.
So, here we are, a simple blog telling you everything you need to know about defending a lawsuit (sarcasm). While these steps are important, they are generalities. When you get that demand letter, call an attorney. A consultation with an attorney will take an hour of your time and may save you years of defending a lawsuit. And, although I’ve only mentioned the stress and time, don’t forget that litigation can start at $5,000 and it just goes up from there (and that’s just the attorney fees). The purpose of this post is to give you some simple guidance that should help you avoid some of the major mistakes we see all too often. Follow these and you’ve got a start.