7 Steps to Take When You Are Sued

7 Steps to Take When You Are Sued
By: Benjamin C. Johnson, Esq.

In today’s litigious society, if you have not already been sued, you probably will be. Knowing the initial steps to take when you are served with a summons and complaint (the documents that begin any litigation) can help to assure ultimate victory and reduce the stress and anxiety that accompanies lawsuits. Following are seven steps to undertake when you are served with a lawsuit.

1. Immediately Inform Your Lawyer – You have 20 to 30 days to respond to a lawsuit once you are served with the summons and complaint. Many people will procrastinate informing their lawyer and will sit on the complaint until a few days before the deadline to respond. A lawyer’s range of actions is severely limited when he receives a complaint with only a few days left to respond, or worse, after the date for responding has passed. Indeed, if you fail to respond on time you may be prevented from defending the action altogether because a default has been entered against you. While a default can most likely be set aside, it requires the preparation of a motion and attendance at a hearing by the lawyer—these activities result in unnecessary legal fees which are better spent actually defending the action on the merits. When served with a summons and complaint, it should be your policy to note the date and time of service and then to immediately contact your attorney.

As a side note, you should ensure that your agent for service of process is always current. Businesses will often move locations and fail to update the address of the agent for service of process which is kept on file with the Secretary of State. This generally results in a default if you are ever sued. Once the plaintiff has attempted to serve you at your agent’s registered address, and failed because the business or agent is no longer at that address, he can serve a summons and complaint upon you via service upon the Secretary of State—and the Secretary of State has no requirement to inform you of any such service. Thus, if you fail to update the address of your agent for service of process there is a chance that you could be validly served with a summons and complaint and yet be completely unaware.

2. Locate All Insurance Policies – There is a chance that the allegations contained in the complaint are covered under an insurance policy which you have already purchased. It is in your best interest to gather all insurance policies (including any insurance purchased by third parties for your benefit), make copies of the policies, and give those copies to your lawyer so that he can determine any potential for coverage. If there is potential for coverage, your lawyer can prepare letters to the insurance company regarding the lawsuit. An insurance company might be required to pay for attorneys’ fees and costs of defending the lawsuit based only on the chance that the allegations of the lawsuit are covered claims under the insurance policy. However, an insurance company is only responsible for legal fees incurred as of the date of the tender letter. Therefore, locating your insurance policies to determine coverage as early as possible can result in less out of pocket expenses for legal fees, and in many circumstances, complete coverage for the alleged acts contained in the complaint.

3. Understand The Allegations Of The Complaint – Anyone served with a complaint should understand its allegations as early as possible—your lawyer should explain the allegations and all ramifications in terms that you can understand. Once you are aware of the allegations and the facts and evidence that will be relevant to a defense, you are in a position to assist the lawyer in achieving ultimate victory or, at least, a satisfactory resolution (see steps #4 and #5). Oftentimes, if you are aware of the allegations, you will be able to assist the attorney at an early juncture in locating key documents and evidence (as opposed to the attorney trying to locate the relevant information on his own)—thereby saving on the cost of attorneys’ fees.

4. Locate and Preserve Evidence – Evidence is often the center of your lawsuit. Whether it is timecards in a wage and hour lawsuit, emails in a breach of contract lawsuit, non-disclosure agreements in a trade secrets theft lawsuit, or incident reports in a slip-and-fall lawsuit, it is imperative that all evidence be preserved in a safe place—thus, any document retention policies that require the systematic destruction of documents should be suspended temporarily. All documents should be preserved, both those that support your case and those that weaken your case. Any intentional destruction of documents will likely be discovered and the penalties for such destruction can be severe. Do not destroy evidence—aside from being unethical, it is also illegal.

With the increasing use of technology in the workplace, computers have become an important source of evidence. Indeed, email and other information stored on an employee’s computer can form the lynchpin of a good defense; you should assure that none of it is accidentally lost due to an employee deleting the information, or a document retention policy causing a purge of the information. Upon being served with a lawsuit, if it is apparent that computers being utilized in the ordinary course of your business will contain key evidence (talk to your lawyer), you should consider making mirror-image copies of your computers’ hard-drives. This will ensure that key evidence is preserved, and has the added benefit of making it less time-consuming for the lawyer to conduct searches to locate the key evidence and other important documents.

5. Identify Witnesses – You must identify as many witnesses to the incidents alleged in the complaint as possible, both good and bad. Your lawyer will want to interview all key witnesses to which he has access as part of his overall strategy development. A comprehensive list of witnesses and their roles will assist the attorney in this endeavor and will reduce the legal costs incurred if the lawyer is forced to do it on his own.

In many cases, by the time you are served with a lawsuit, many months and perhaps years have passed since the incidents alleged in the lawsuit occurred—as a consequence, many favorable (and not so favorable) witnesses may have moved on to other jobs. Thus, as part of your overall business policy, it is imperative that you collect contact information for each employee who leaves your employment (email addresses are invaluable because they do not change as often as telephone numbers and home addresses). Lawsuits can be lost because key witnesses who have left your employment cannot be located. Another benefit of compiling your list of witnesses early is that you can contact former employees and offer to represent them for the purpose of any deposition noticed by the opposing side—this will prevent the opposing side from communicating with your former employees except at the deposition.

6. Be Careful About Who You Speak With Regarding The Lawsuit – When served with a summons and complaint, there is sometimes an impulse to call the opposing party in an attempt to resolve the dispute without the expense of a protracted lawsuit, or to vent to someone else about the fact that the opposing party has sued you—avoid this temptation. Call your attorney instead. Communications with your attorney are privileged and opposing counsel has no right to inquire into any such communications. (In fact, you should tell your attorney everything you know—if you withhold any information that later comes up in court, it might catch your attorney unprepared and cast doubt on your defense.) On the other hand, any communications among officers or partners of your business, or anyone else, are not necessarily privileged and could potentially be discovered by the opposition. You should also assume that any statements made to employees will be communicated to customers, and statements made to customers will be communicated to the opposition. Limit discussions regarding your case to conversations with your attorney. If after discussing the lawsuit with your attorney, you still feel compelled to approach the other side, you can discuss the context of such a conversation with your attorney—your attorney can instruct you on what to say and, more importantly, what not to say.

7. Remain Calm – A lawsuit is not the end of the world. Oftentimes, the lawsuit can be handled with no disruption to the business operations. Do not go into denial mode. Early discussions with your attorney will assist in preparing a proactive strategy to defend against the claims—even in cases where the allegations are probably true and you fear liability for the damages alleged, a good defense strategy can limit the amount of those damages.

By following these steps at the outset of litigation you may achieve a substantial savings on legal fees, increase your chances of obtaining a positive result, and decrease your anxiety and stress level.