Every year, 15 million lawsuits are filed in America, or so we’ve been told. Chances are, then, if it hasn’t happened to you already, sooner or later you too will be sued.
Lawsuits are incredibly stressful but, in the whole scheme of things, it’s not the end of the world. Erase any crazy thoughts of drowning yourself in the ocean and realize you will get through this. Relax, take a deep breath, and let’s figure out how to get through being sued, which, is, essentially, part of the American experience.
How will you know when you’ve been sued?
More often than not, you’ll know it’s coming. You may have received a warning that it would happen. But, regardless, in almost all cases, when you’ve been sued, you’ll know it.
There is a clause in our constitution — called Due Process — which requires that, if a lawsuit is filed against us, you must receive notice. That notice will usually come in the form of a summons,
Most often, the summons will be served on you by a certified process server or sheriff’s deputy. In rare instances, such as small claims court, the summons may be delivered via certified mail.
Look at the summons
Depending on what court the case is in, the summons may look different.
For example, in Florida state court, the summons will be written in three languages: English, Spanish, and French. In federal court, however, it’s a single-page short form.
The summons is incredibly important. Reasons include:
- It will tell you when you need to respond, or, if the action is in small claims, when to appear. If your case is in federal court, the deadline to respond is generally going to be 21 days. In state court, it’s usually 20 days, except in some exceptions such, as, for example, evictions, where you only have 5 days to respond.
- The process server should sign his or her initials and provide the date that you were served. (This is important – if it does not have this information, it may be a defective summons.)
These dates are essential because if you miss your deadline to respond to the lawsuit, a default maybe entered against you.
Check your Insurance
Once you’ve determined your deadline to respond, the next thing you may want to ask is whether you have an insurance policy that might help to cover the defense of the lawsuit.
Not everyone knows it, but many homeowner’s policies cover defense of lawsuits. This could end up saving you thousands of dollars in legal defense fees. Therefore, call your insurance agent to find out if defense coverage is a possibility.
Let your attorney examine the complaint
Attached to the summons is the complaint, or, in small claims cases “statement of claims.” This is the document that states why you are being sued and who is suing you. It might be only three pages or several hundred pages. It will likely be loaded with a lot of legalese.
The complaint is properly separated into numbered paragraphs and should include allegations as to how jurisdiction is proper over you. It will include some factual allegations. Then, the claims against you will be separated into “counts.”
Now is a good time to consult with an attorney who practices in the area of law at issue. You may very well be thinking that your situation is defenseless. However, an experienced attorney will likely see things differently. There could be any multitude of defenses available that you have not thought of.
Prepare how to respond
The way you respond to this complaint is either –
- A motion to dismiss (if the complaint on its face has fatal defects precluding an answer);
- An answer with affirmative defenses; or
- A combined motion to dismiss/answer; or
The response is important because if you do not include certain affirmative defenses when it is time to respond, they will be considered waived.
Also, If you have claims against the party who sued you, you may be able to add a counterclaim to your answer.
Recap & Overview: What to do when you’ve been sued
The point is to remember that just because you were sued does not mean you did something wrong. It is not something to be ashamed of. It simply means that you are engaged in a dispute with someone else. There are two sides to every dispute, and the lawsuit filed against you is only one of those sides. You still have a chance to present your side.
Whatever you do, once you get that summons — do not ignore it.
- First, examine the summons.
- Make note of the date you were served, and your deadline date.
- Check for any insurance policies that may help you defend.
- Examine the complaint & consult with an attorney.
And those are the first steps in dealing with being served with a lawsuit.
If you would like to consult with attorney Cynthia Conlin about your legal matter, call our office at 407-965-5519 or click here to schedule a telephonic consultation.