I’VE BEEN SERVED – NOW WHAT?
It is axiomatic that a person should be entitled to their day in court –but that only applies if you show up. If you are served with a lawsuit, it is important to act quickly in response. Failure to respond on time can result in the court entering a default –and eventually judgment –against you.
The typical packet of documents you will be served with initially are a civil case cover sheet, a summons, and a complaint. If you are unsure whether you have been officially served with a lawsuit, you have two options. The recommended option is to call an attorney who can represent your interests in the lawsuit. An initial consultation with a law firm should be at no charge to you. Attorneys charge either hourly or on a flat rate monthly basis to handle a lawsuit defense. It would be very rare for an attorney to offer to defend the lawsuit for you on a contingency basis,because the person being sued is not likely to recover any money in the lawsuit.
Alternatively, if you are unable to hire your own attorney, you should contact the attorney of the person who sued you. Their contact information will be in the caption (upper left corner) of the complaint. The plaintiff’s attorney represents your opponent and does not have your best interests in mind. But, if you contact them early on they may be willing to offer you an extension of time to answer the complaint or assist with early settlement negotiations that may resolve the matter.
Generally, you have only 30 days to respond to a complaint. That time starts to run when you’ve been served. Your response must be a document that is both filed with the court and served on the plaintiff. Most defendants will file a simple answer to the complaint, either admitting or denying the allegations in the complaint. Occasionally a more in-depth motion like a demurrer will be appropriate. A demurrer makes the argument to the judge that even if everything in the complaint is true, the person filing it still does not have a valid legal argument to win the case.
If you do not timely file your response or if you file it insufficiently, the plaintiff may ask the court to enter a default against you. This means you missed your window to show up to defend against the complaint and will be precluded from participating in the case. There are mechanisms to ask the court to set aside (aka: remove) a default and let you file a response to the complaint.But there is no guarantee such a request will be granted.
Sometimes defendants choose to not respond to a complaint because they do not feel the service of process of the complaint documents was proper. Improper service is a basis for asking a court to set aside a default. But, that strategy carries risk and can be quite lengthy and expensive. The more efficient response is to retain counsel and/or contact the plaintiff’s attorney to explain that service was improper.
Other times, defendants choose to not respond to a complaint because they feel it has no merit. Lawyers frequently hear protests of, “But they can’t sue me for that!” from clients who have been sued. In general, anyone can sue you for anything. They might not win their lawsuit. But there are very few bars to them bringing it. And if you choose not to respond, then you are waiving your right to defend against it and argue to the judge that it lacks merit.
Another common mistake is waiting until the last minute to seek legal assistance. You should call an attorney immediately after being served. Law firms typically have mandatory client agreements and retainers that must be completed before they will begin working on your case. They will have other clients to help and may need a couple of weeks or more to adequately prepare your response. Do not assume that any lawyer you call will be able to help you mere days before your answer is due.
Outside of the most simple small claims matter, the process of timely and properly answering a complaint – and thereby avoiding default – can be quite complex. For that reason, it is important that you act promptly once served and, if possible, contact an attorney for assistance.