In the fiscal year 2004-2005, 1,423,097 civil lawsuits were filed in California. Given those statistics, odds are that many businesses will end up in court sooner or later. For those of you who have not had this misfortune, here are six crucial basics you should know about what to do—and not do—within the first thirty days of being sued.
First, gracefully accept the packet of papers (called a “summons and complaint”) from the process server. Although the natural tendency is to try to avoid the process server, such sneaky tactics inevitably lead to greater headaches later on.
Second, you ought to notify your legal counsel immediately upon receipt of the lawsuit. You only have a short period of time—thirty days—in which to file responsive papers with the court. Failure to respond within the time limit can result in the court entering a default, and eventually, a judgment, against you. Moreover, an early consultation will give your attorney sufficient time to evaluate whether a demurrer—i.e. a motion to dismiss the lawsuit—should be filed. There may not be time to prepare such a motion if you don’t get around to notifying counsel until weeks after you first receive the lawsuit.
A natural tendency is to hold off notifying counsel as long as possible in the hope of avoiding legal fees. Often this turns out to be like avoiding going to the doctor until you get really sick. Early treatment is better. Likewise, competent counsel can cooperate in minimizing fees, while at the same time providing technical advice that can go a long way in cutting the case short—by far the best way to curtail fees.
Third, review your insurance policies for potential coverage for the claim. Don’t conclude the claim is not covered until you and your counsel have carefully reviewed the policy language. If the claim is potentially covered, it is important to notify the insurance company immediately. Insurance companies will often refuse to pay litigation fees and costs incurred before notice of suit is given.
Fourth, be prepared to take immediate steps to investigate the claims raised in the lawsuit and to secure evidence that will support your defense. Primarily, this relates to documents and witnesses. Oftentimes, this is simply a matter of gathering all relevant documents—contracts, invoices, letters, emails, etc. Do not, under any circumstances, destroy or alter documents. Invariably, such conduct is discovered and then viewed in court as the equivalent of guilt, even where the documents in question were marginally relevant. It is equally important to identify all witnesses to the matters raised in the lawsuit. Conducting early interviews, and perhaps obtaining written statements, will avoid the problems of fading memories or missing witnesses. Witness tampering in any form should of course be avoided. Many a defense has met disaster over trivial discrepancies in witness testimony that arose simply because the defendant thought he could be clever by “improving” his story.
Fifth, work with your attorney early on to evaluate your potential liability and formulate a litigation strategy that fits the nature of the case. Is the lawsuit frivolous or are you facing potential liability? Is the dollar amount at stake large or small? Is the evidence at hand helpful or harmful? Come up with a plan that fits the nature of the case. You won’t want to plan a vicious legal battle where the amount at stake is small. You won’t want to take a casual approach where a significant percentage of your company’s assets are at stake. Early evaluation and planning will assure that the most effective approach is used.
Finally, and perhaps most importantly, consider early resolution of the case. Often times, settlement within the first thirty days of a lawsuit is not possible due to time constraints, the amount at stake, or lack of information. Nevertheless, early exploration of settlement opportunities is the best way to control the outcome of the case and minimize legal costs.
The article presented herein is intended as a brief overview of the law and is not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney.