If you receive a summons and complaint or have been threatened with a lawsuit, you should know how a lawsuit works and what to expect. A lawsuit or even the threat of litigation can be an extremely stressful experience. Here are some tips on what to do if you’ve received a summons and are being sued:
1. Review the Complaint.
First, read the caption or the heading of the complaint and determine the parties to the suit. If you’re involved, you’ll be listed as a “defendant.” You should recognize the plaintiff, but if you don’t, read through the complaint to see why the plaintiff is asserting a claim against you (find out what you allegedly did wrong and what they want).
On the last page of the complaint, there should be a prayer for relief, which is what the plaintiff wants from you. The plaintiff may be seeking money damages, asking the court to order you to do or not do something, or some other determination, such as interpreting a contract in their favor.
2. Stay Calm.
It’s easier said than done, of course, but no matter how you decide to proceed, you must stay cool and resist the urge to call the plaintiff or his or her counsel. Also, don’t discuss the case with coworkers or friends—remember, they may be called as witnesses for the other side. In addition, don’t delete files or shred documents. Take a deep breath and try to relax a little.
3. Engage Experienced Legal Counsel.
If this is anything substantial and not just a few hundred dollars in small claims court, you’ll want to speak to an experienced attorney. If significant money is at stake or your rights may be in jeopardy, you should have legal representation. A seasoned New York attorney will know the procedural rules that must be followed and how to approach your case.
Remember, if decide that you’re going to be your own attorney, you’re expected to know everything that an attorney does. The judge won’t cut you any slack or explain everything in plain English to you just because you’re on your own. If you miss a deadline, you’ll suffer the consequences. That’s why an investment in a skilled and experienced New York attorney will pay dividends, especially when your business, your reputation, or tens or even hundreds of thousands of dollars are at risk.
4. File An Answer.
New York court rules only give a defendant a certain number of days—usually 20— in which to respond to the complaint.
You must respond to each allegation in the complaint. You can either: (i) admit that it’s true; (ii) deny that it’s true; or (iii) deny that you have enough knowledge or information to know if the allegation is true or false. You must respond to each allegation of a complaint. If you don’t, the court will rule that a claim is admitted.
If you fail to file an answer, the plaintiff is entitled to request a default judgment. That means the court will deem that you accept everything in the complaint as true. It’s an automatic verdict for the plaintiff without any trial. As a result, the plaintiff with the judgment will try to enforce it against you by garnishing your wages, attaching your bank account, or taking your property.
In New York State, judgments are valid for 20 years. So, the plaintiff would have two decades to get the judgment satisfied. Note that a judgment can act as a lien on real property and cause problems for you with applications for jobs, loans, and licensing.
If you hire an attorney, he or she will help you plead what are called affirmative defenses. These are reasons given by the defendant why the plaintiff shouldn’t win. These are important because an affirmative defense can help you win the lawsuit, despite the fact that what the plaintiff says is true. Some common affirmative defenses are fraud, res judicata (the issue has already been decided by a court), the Statute of Frauds (an agreement must be written down), or the statute of limitations (the plaintiff failed to file his or her lawsuit before the deadline).
An affirmative defense must be included in your answer, or it’s deemed waived.
5. Try to Get the Case Dismissed.
Again, this is something best left to an attorney. A motion to dismiss is a request by the defendant to have the case dropped for a variety of reasons. Common reasons are a failure to state a claim, improper service or other procedural defects, the lawsuit is untimely (filed after the court deadline) or a number of other reasons. It’s rare for this to work, but every case is different, and sometimes the court will grant the defendant’s motion.
6. Sue the Plaintiff.
If you believe that you’ve been injured or damaged by the plaintiff, you can file what’s called a “counterclaim.” If your claim stems from the same transaction or incident on which the plaintiff is basing his or her claim, you must file a “compulsory counterclaim.” Failure to file this type of counterclaim means that you can’t sue the plaintiff later in a separate lawsuit. There’s also what is known as a “permissive counterclaim.” This is filed when your claim doesn’t arise out of the same transaction or incident that underlies the plaintiff’s claim. As the name implies, with a permissive counterclaim, you’re not required to file it as a counterclaim in plaintiff’s case against you. You can bring this claim in a separate lawsuit.
7. Attempt Negotiation.
If you’re working with an experienced New York attorney, he or she will try to work with the plaintiff’s attorney to find a resolution to the complaint.
Remember that litigation expenses add up quickly. There can be depositions, investigations, expert witness fees, trial preparation time… all of which come with a price. Most cases settle, and your attorney will try to negotiate terms that are acceptable to both sides.
8. Prepare for Trial.
If negotiations fail, you and your attorney may be headed for trial. While an offer to settle may come at any time—even during trial—you must be prepared to litigate the dispute. You’ll need to assist your attorney with gathering information and documents. Your attorney will be busy preparing witnesses, filing motions, and getting ready with all of the tasks in a trial. This can include picking a jury, trying to evidence included or excluded, formulating an opening argument, and mapping out a trial strategy.
9. Accept the Verdict.
After the jury or the judge makes a final decision in the case, you’ll have to live with it. Your attorney can help you arrange terms for satisfying the judgment or discuss a possible appeal if you loose. If you win, you can simply move ahead with your life.
If you receive a complaint and summons, you can quickly get in over your head. As discussed above, if you forget to state certain things in your pleadings or you miss a court deadline, it will negatively impact your case.
Even the threat of litigation can disrupt your business and your personal life. So, if there’s a lot at stake, you should work with an experienced attorney.