What To Do Now That You’re Being Sued02.21.2022
You just signed for a piece of certified mail from an unfamiliar law firm, or a Sheriff’s deputy has delivered some papers to your door. For many individuals and small businesses, getting sued is their worst nightmare. However, knowing what to do in these early stages of litigation is crucial and can help ease the stress that inevitably comes when you get hauled into court. Here's what to keep in mind when you find out you are being sued...
Notify Your Insurers Immediately
Depending on the nature of the underlying claims of the lawsuit, you may have an insurance policy in place to protect you from personally being liable for any judgment amount, up to your limits of insurance. If you plan on relying on insurance coverage to pay for all or most of any potential judgment, your policy likely will require that you notify your insurer and forward any lawsuit papers as soon as possible. Failure to do so can forfeit coverage, leaving you to foot the entire bill for upcoming litigation.
Insurance is purchased for a reason, and there are many benefits it provides. Depending on the claims and the terms of your policy, your insurer may pay for both the cost of your defense, including hiring a lawyer or paying for a lawyer you request with the insurer’s approval, as well as any judgement that you may owe at the end of the suit. If your insurance company is immediately notified of the lawsuit and your coverage is preserved, it will save you a lot of stress, and legal fees, in the long run.
Hire the Right Lawyer for the Job
You wouldn’t hire an electrician to fix a clogged pipe. For the same reason, you need to hire a lawyer best equipped to handle your matter. Lawyers practice in a variety of genres, and it may be overwhelming trying to figure out exactly what type of lawyer you will need. In some instances, like an auto accident case, your insurer may hire attorneys that they frequently work with on similar matters. However, you may find yourself in a position where you need to find your own lawyer. Many people know someone who is a lawyer or know someone who knows a lawyer. However, you shouldn’t insist that your niece who focuses her practice on corporate transactions represent you in a premises liability matter. If an attorney is not the best suited for the situation, they should be able to recommend someone who is. You will want to know if the lawyer has handled similar cases and, if so, how often.
Time Is of the Essence
Lawsuits are governed by rules of procedure. In most instances, you have approximately 20 days to respond to a lawsuit. If you fail to respond within the applicable time limit, you may have judgment entered against you by default. This can result in more stress (and legal fees) to have a default judgment vacated, if it is even possible to do so. As you can see, it is imperative that you get moving as soon as you receive a summons. Once you have the right lawyer representing you, they can typically get an extension of time to respond to allow for an initial investigation.
Your Obligation to Preserve Evidence
Once you have been sued, or if you think you might be sued, you have a duty to preserve evidence. A party who is caught destroying physical evidence or deleting electronic evidence (emails, text messages, etc.) can face monetary sanctions or be prevented from disputing certain facts, among other penalties. To be safe, best practices would be to preserve anything in your possession that is related to the party suing you. For example, if you are involved in a products liability case, you would not want to delete or destroy any correspondence or invoices related to the sale of the product itself.
Try Not to Discuss the Lawsuit with Anyone
Anyone who has watched a cop show or movie knows that “anything you say can and will be used against you in a court of law.” Although police provide this statement in connection with criminal matters, the same reasoning applies in civil cases. With a limited number of exceptions, anyone you talk to about the lawsuit, or the facts of the underlying lawsuit, are a potential witness. Even if there is not a “smoking gun,” you may nevertheless not want your lawyer, or the other side’s lawyer, sifting through your emails or bringing your mother in for a deposition.
Our legal system is designed to sort out the truth, and parties are expected to be honest. No lawyer should ever recommend that you lie under oath and doing so can result in a felony conviction for perjury and jail time. Furthermore, if you are not completely forthright with your attorney, it will impact their ability to effectively represent you in the matter.
Listen to Your Lawyer and Have Reasonable Expectations
You, or your insurer, hired a lawyer to be your trusted advisor to guide you through the legal process. Your attorney is in the best position to review the facts of your case and advise you of the potential and likely outcomes. Your lawyer may tell you something that you do not want to hear – for example, you will likely lose. It is in these instances that you should particularly listen. They are experienced in the process, with the courts, and with cases like yours. If your lawyer tells you bad news or tells you not to do something, they are providing that advice because it is in your best interest.
It is also important to have realistic expectations. Although everyone believes they are in the right, most cases inevitably settle. In fact, by some estimates less than 5% of civil matters are resolved by trial. There are many factors that contribute to this trend – the costs and risks associated with going to trial, discovery of unfavorable evidence against a party, or interest in resolving the matter as quickly as possible, just to name a few. Sometimes when a lawyer recommends settlement, it is not because they do not think you have a strong case. Instead, they are looking out for your bottom line because litigation can result in hundreds of hours in legal fees to get a case ready for trial.
Knowing what to do when you’ve been sued is critical, especially in the early stages to ensure insurance coverage and avoiding default judgments. It is in these early stages that you must preserve and gather any relevant information for your lawyer to review. It goes without saying that you should be truthful throughout the entire process. Know that your lawyer is looking out for your best interests, and your case is more likely than not to settle before you even get your day in court.
Chuck Niblick is an attorney with the litigation team at Katz Korin Cunningham. He focuses his practice on insurance defense, insurance coverage, asbestos litigation, and environmental litigation. Chuck represents insureds — both individuals and entities — in motor vehicle accidents, dog bite cases, employer liability cases, premises liability cases, and products liability cases, including cases involving alleged asbestos exposure.
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