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What to Do When You Get Sued! A Step by Step Guide!
by Jonathan Pink, Esq.
You've just been served with a lawsuit.
Your heart is racing, your palms are sweating and your mind is spinning.
Your first instinct is to lock the doors, pull the shades and turn off the lights. Your second instinct is to move to another state, and leave no forwarding address.
Calm down. Take a deep breath. Now another. Your next step will require clear thinking. You need to be methodical and deliberate as you prepare your defense.
Step I - Read the complaint
It may be filled with legal jargon you do not understand. There may be claims (also called "causes of action") that use unfamiliar terminology. If so, use the Internet to research these terms so that you understand the essence of the allegations. Are you being sued for breach of a contract, for negligently harming another person or property? Are you alleged to have engaged in fraud, the theft of trade secrets or the misappropriation of a trademark, copyright or tangible property?
After you have read the complaint, read it through again. Keep in mind that you have a little breathing room. Unless you have been sued for unlawful detainer, you have at least 20 days from the date you were served with the complaint to file an answer. Moreover, in California, you are guaranteed at least one 15 day extension to file an answer if you need it. The point is you have a little breathing room here, so relax. You will need a clear head for the next -- possibly most important -- step.
Step II - Find an attorney
Now that you have a general idea about the nature of the suit, look for an attorney who specializes in defending that type of lawsuit. Attorneys do not come in "one size fits all." If you have been sued on breach of contract, look for a business attorney. If you have been sued for copyright infringement, look for someone with a lot of experience defending copyright claims. If you have been sued for negligence in a personal injury claim, look for a personal injury lawyer. You want someone with a deep knowledge of the specific area of law at issue in the suit against you.
Think of it this way: you are a country that is under attack. You want an experienced general to lead the army that will repel -- and destroy -- the enemy. You want someone who has seen many battles and knows what it takes to win.
There are several ways to find an attorney. You can look on the Internet for attorneys that practice in -- and have experience defending -- cases like yours. Don't be misled by an attorney who claims to practice in a wide range of areas. Look for a specialist. Another way to find an attorney is to ask people you know for recommendations. If you are a business, ask someone in your industry. If you have been sued because your dog bit someone, ask your veterinarian for the name of an attorney specializing in dog bite law. If you know an attorney already, ask that person if they know anyone who would be right for the job.
After you have several names, call these attorneys on the phone and interview them. Most will be happy to spare fifteen minutes to you about your case.
Keep in mind, however, that you are looking for a defense attorney. This means there is almost no chance you will find someone to take your case on contingency unless you have a strong counter claim and there is a contractual or statutory right to recover attorneys fees by the prevailing party. Contingency lawyers are plaintiffs' counsel. They are betting on getting a piece of any settlement or judgment they can extract from the defendant down the line. The defense is trying to keep the plaintiff from getting that judgment, so absent the situation described above, there is no pot of gold at the end of the rainbow for the defendant's counsel. As such, you can expect to pay by the hour. This can range from about $200 - $700 per hour depending on the attorney's experience, area of practice and national prominence. While this can get expensive, choosing the wrong attorney because you hoped to save a few bucks can cost even more in the long run.
Step III - Help Your Attorney Help You
Now that you've selected your counsel, make sure you give him or her everything they need to win the case. This means giving them all the information they ask for. Do not hide information from your lawyer, do not lie or spin facts to help your lawyer. Give your whole story --blemishes and all -- and let your attorney use that information to develop the best defense.
If your case is dependant on documents, or if you have any physical evidence (letters, agreements, etc.) that support your side of the story (or even hurt your case), give these to your lawyer. At this stage of the game, your lawyer is like a detective. Every little piece of information and evidence may be the critical piece that will destroy the plaintiff's case.
Step IV - Tender Your Claim to Your Insurance Carrier
In addition to giving evidence to your lawyer, it never hurts to have your lawyer write to your insurance company, "tendering" your claim. This means asking your insurance company to pay for your defense. Insurance companies will do this if you have been sued for a "covered" claim. Everyone's insurance policy is different, but it never hurts to ask. It does, however, hurt to wait too long before asking. Make sure to do this within the first week of being served with the complaint.
Step V - Answer, Respond, Counterclaim, or Try to Settle.
These actions will be handled by your attorney, but you will provide critical guidance. Remember, your lawyer is the general, but you are the country that has been attacked. You alone will live with the result of the lawsuit.
An answer -- or other responsive pleading -- will be required absent an earlier settlement. At the same time, your attorney may take this opportunity to see if he or she can negotiate an early settlement of the case. In deciding whether settlement is appropriate, a level head will again be critical. While you will feel enraged by the allegations, it will be beneficial to adopt a dispassionate, analytical, and strictly non-emotional frame of mind as you work through the issue of possible settlement or proceeding with the lawsuit.
If you follow these steps you will greatly improve your chance of mounting a successful defense. If you don't follow these steps, well you can always think about moving to another state and leaving no forwarding address.
Jonathan PinkLewis Brisbois Bisgaard & Smith LLP
650 Town Center Drive
Suite 1400
Costa Mesa, California 92626
Telephone: 714.668.5589
Fax: 714.850.1030
Email: pink@lbbslaw.com
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