• Ariadne Montare

You've Been Sued! What to Do Next

You come home after a hard day at work and find a slip in your mailbox for a certified letter sent from small claims court. Or the doorbell rings one morning while you are making coffee and it is a process server with a large envelope. If you are like most Americans, finding out that someone has sued you can quickly ruin your day, or make a bad day worse. Watching all the legal dramas on TV will not prepare you for dealing with the complexities of the civil court system. So, what should you do if you have been sued?

1) Don't Ignore That Envelope!

The first thing that happens after a plaintiff (the person filing a lawsuit) files their suit is that the defendant (the person being sued) must receive a notice that a claim has been filed against them. In small claims court, both the notice and the substance of the plaintiff's claim are usually contained in one document called a Statement of Claim. The method by which the defendant receives the notice is called "service." In small claims court, the court will serve the defendant by mailing the statement of claim, usually both by certified mail or first-class mail. If the first-class mailing makes it to the defendant's mailbox, then service is complete, whether the defendant opens the letter or not. So, make sure you open that letter!

In county, state, and federal courts, there are two separate documents that start the suit - the Summons, which is the legal notice of the suit, and the Complaint, which contains the substance of the plaintiff's claim. There are a bunch of ways that a defendant can be properly served with a summons and complaint, but the most common is personal service, which means being personally handed a copy of the summons and complaint by a process server.

2) Zero in of the deadline for responding to the claim.

Either way, once you receive a notice of a lawsuit, you will need to read the documents as soon as possible to get your bearings and find out important facts about the case. The most important fact you need to know is the deadline for filing a response to the claim. This date will be clearly stated in either the summons or the statement of claim. Mark the date on your calendar and set up a reminder at least a week before that date so that you make sure you do not miss this crucial deadline.

3) The worst thing you can do is do nothing.

If you miss the deadline to respond to the claim, the court will assume you are not planning to defend against it, and the court may then go ahead and enter a judgment against you, which will ordinarily grant the plaintiff whatever relief they are seeking. A judgment entered in the defendant's absence is called a default judgment. Once a default judgment is granted, the suit is basically over, and the plaintiff can take that judgment and collect the amount of the judgment from you through various ways - garnishing your wages, seizing your personal property, placing a lien on your house, putting a freeze on your bank account, etc. This is called enforcing the judgment, and this is where things get real real quick, which is why the worst thing you can do if you are sued is to do nothing.

4) Make note of these important facts.

The statement of claim can be very confusing, especially if it is prepared by an attorney and contains a lot of legalese. But what you will want to know up front is who is suing you, why are they suing you, what do they want from you, and where are they suing you.

5) Who is the plaintiff?

Is it a person or a business? Is this person or entity someone you know or a stranger? Just because you don't recognize the person or entity suing you doesn't mean that they do not have a legal claim against you. Debts and legal rights can be sold or transferred from one person to another. In order to defend against their claim, you will need to figure out what their relationship to you is, and why they think they have a right to sue you.

6) What does the plaintiff claim that you did wrong?

When a plaintiff files a lawsuit, they are doing two things - (1) they are complaining to the court that you did something wrong, and (2) they are asking the Court to right that wrong in some fashion. The statement of claim should say what it is that the plaintiff claims you did wrong, such as failing to pay them for a debt you owe them.

7) What is the relief that the plaintiff is asking the Court to give them?

In most cases, the plaintiff will be asking for money damages, but sometimes they want something else, like an order keeping you from something (such as building a fence over six feet tall), or permission to take an action against you (like evicting a non-paying tenant). In small claims court, the plaintiff needs to state in the statement of claim precisely what kind of relief they want. In other courts, the complaint has to at least state the type of relief (monetary or otherwise) but the plaintiff doesn't have to state an exact amount right at the beginning.

8) Where was the lawsuit filed?

Where a lawsuit has been filed can be important for several reasons. First, there are rules governing where people can be sued. If the plaintiff sued you in a court that is convenient for them, but not convenient for you, you may have the right to have the suit either moved, or in some cases, even dismissed. Second, you will want to know what kind of court the case is in because this will determine how quickly the case will move through the legal process, and whether or not you should seek an attorney (NOTE: I strongly advise against representing yourself in any court other than small claims court). Finally,

since you will most likely need to appear in court at some point, you should familiarize yourself with where the court is located, what the parking is like, what kind of public transportation is available, etc.

9) Consult with an attorney.

My last and best piece of advice to you is to consult an attorney. You get can a consultation with most civil attorneys for no fee or a reduced fee, so there is little to be lost from at least consulting with an attorney as soon as you can. Defending a lawsuit is hard, complicated, and time-consuming, which is why attorneys have professional degrees and years of on-the-job training. While some courts provide limited assistance to defendants who want to represent themselves (referred to as pro se defendants), no amount of internet research will prepare you for the all the rules and procedures that govern a legal case. In order to handle any given lawsuit, an attorney must know the laws that explain the legal rights involved, the procedural laws that explain how that particular type of lawsuit is litigated, the rules and procedures of the court in which the case is filed, and sometimes even the rules and procedures for the particular judge who is assigned to the case. If you get any of these wrong, you will provide the plaintiff with ammunition to win their case. And if you lose, there are very few pro se defendants who know how to protect their rights to appeal an unfavorable judgment. If you try to go it alone, the most likely outcome is that you will end up hiring an attorney to fix your mistakes, which will be much more expensive than hiring them from the very beginning.


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