By Matthew C. Lewis, Attorney at Law
There are few things that can cause panic, fear, or confusion like being served with a lawsuit, whether it is against you personally, against your business, or in many instances, both. If you find yourself or your company served with such a lawsuit, how you choose to respond is critically important. Don’t give in to the temptation to act or respond brashly. Instead, stop and think before you react. And when you do stop and think, make sure you consider the following do’s and don’ts:
- Do NOT contact the plaintiff or their attorney. No matter how you feel about the lawsuit or the plaintiff’s motive for bringing it, no good can come from an impulsive phone call, email, or face-to-face confrontation. Anything you say during such a confrontation might end up being used against you in court. If you or your company are being sued, there is no reason to risk giving the opposing party that kind of potential extra ammunition!
- Instead, DO take time to review the lawsuit documents, assess the allegations the lawsuit contains, and start determining who you want to contact for legal advice. A quality attorney can help you assess the merits of the lawsuit and assist you in identifying your best options for responding to the lawsuit.
- Do NOT simply ignore the lawsuit. While you don’t want to respond brashly, lawsuits are, in fact, time sensitive. You want to make sure you take appropriate action in a timely manner, so don’t wait until the last minute to seek legal help or counsel.
- DO seek legal counsel in a timely manner. An attorney can help you understand your legal options, how much time you have to file your responsive pleadings to the lawsuit, and the potential timeline involved in civil litigation.
- Do NOT shred, delete, or hide any personal or company documents or data that may be relevant to the lawsuit. Doing this is called “spoliation of evidence” and can lead to worsening legal problems.
- DO begin identifying potential documents, data, witnesses, and other sources of information and evidence that you believe might be useful or relevant to your case. Make of list of these potential information sources and share the list with your attorney when you schedule a consultation.
- Do NOT forget to check your insurance policies. Some insurance policies contain a “duty to defend” clause, which, in some cases, means the insurer may directly hire an attorney to defend you and your company. Such an outcome can significantly reduce the financial burden of the lawsuit on you and your company, by shifting the costs of an attorney onto the insurer.
- DO contact your insurance carriers as soon as reasonably possible. Assuming your business has general liability insurance, this is often the best place to start. Many policies contain a “duty to defend” clause, as mentioned above. Such a clause may require the insurer to defend you and potentially cover any judgment against you or your company. If this is the case, the involved insurance carrier will almost always handle the heavy lifting on your behalf, including hopefully any attorneys’ fees, court costs, and other associated charges. Other potential insurance carriers you may need to contact, depending on the nature of the lawsuit, include: premises’ liability carrier, worker’s compensation coverage carrier, and/or auto insurance carrier.
- Do NOT attempt to write your own answer (which is your legal response to the lawsuit). The law is full of procedural requirements and technicalities that can cause you to forfeit potential defenses or admit crucial allegations if your response to the lawsuit is not properly drafted.
- DO work with your attorney, whether hired by you or your insurance carrier, to provide the information needed for them to draft your response to the lawsuit. A quality attorney will make sure all viable defenses are raised and that any viable motions to dismiss the lawsuit are filed. Additionally, depending on the situation, you may have one or more potential counterclaims you can bring against the plaintiff or crossclaims you can bring against third parties who might be partially liable. Working with the right attorney will ensure any such counterclaims and/or crossclaims get filed when appropriate.
- Do NOT leave your employees out of the information loop. Your employees may have important information or be potential witnesses. They may find themselves being approached by attorneys or investigators for the plaintiff. If this happens, they need to know who they can and cannot share information with and under what circumstances.
- DO make clear to employees that they are to fully cooperate with your insurance carrier and defense attorneys, while avoiding engagement of any nature with the other side (including attorneys and investigators working for the plaintiff) unless directed to do so by your attorneys. When in doubt, contact your attorneys’ office to get clarification as to any uncertainties.
In the end, every situation, and every lawsuit, is different. However, no matter the circumstances you find yourself in, make sure you are open and honest with your legal team. It is never in your best interest to mislead or hide things from your own attorneys. Your attorneys can only help you solve a problem once they know it exists.
If you or your business has been sued, or you are considering legal action against someone else, contact Brinkley Walser Stoner. We are here to help guide you through the process, and to ensure you never have to face the stress, fear, or uncertainty of a lawsuit alone.