Litigation & Appeals Law
How-To Respond To A Lawsuit
Have you been served with a lawsuit? Being sued can be one of the most stressful and frustrating experiences in life. First of all, don’t panic! But do not simply ignore the lawsuit. Responding to the lawsuit is the first and one of the most important steps in a lawsuit. If you don’t file a timely response, the person who sued you can win by default. By filing a response, you begin defending yourself by telling the court that you contest the allegations in the in the complaint. This forces the plaintiff to prove their case and gives you your “day in court.”
The most common steps involved in responding to a lawsuit are as follows:
STEP 1 – Call an Attorney Immediately. An attorney experienced in defending against the type of lawsuit you’ve been served with will undoubtedly be the best tool in your defense toolbox. Lawyers are knowledgeable about the procedures involved in lawsuits and skilled at making persuasive arguments to a judge or a jury in your defense. An attorney can also help you try to settle the case out of court as an alternative.
STEP 2 – Determine When a Response is Due. You must file a response by a certain deadline. The summons on the front page of the court documents should include a notice of time limit to file a response. For most civil lawsuits, a defendant usually has either twenty (20) or thirty (30) days to file a response with the court, however some cases have very short deadlines (for example some eviction lawsuits may have a three (3) or five (5) day deadline to respond). The summons will contain the information about the court where the lawsuit is filed and you can call the clerk for more information about the deadline. DO NOT wait until the last minute to contact an attorney as the attorney will need time to adequately prepare a response in time.
STEP 3 – Decide Which Kind of Response to File. There are a variety of responses that can be filed with the court in response to a complaint. An attorney who is skilled in defending lawsuits may suggest certain responses based on the specific nature of the complaint such as a motion to transfer the lawsuit to a new “venue” (location), a motion to “quash” an improper service of process, a “demurrer” (stating that the allegations in the lawsuit are not legally sufficient for the plaintiff to sue you), or other kinds of responses. However, the most common response to a civil lawsuit is called an “Answer” (some other name depending on the state). An Answer is a written document in which a defendant admits or denies the allegations in the plaintiff’s complaint and sets forth the reasons why the defendant should not be liable. Any statements contained in the complaint that are not denied in an Answer are deemed by the court to be true. In an Answer, all “affirmative defenses” must also be raised. An “affirmative defense” is any statement of fact or law that would be a defense to the allegations. Common examples of “affirmative defense” include (1) “statute of limitations” – the time period allowed under law to bring the lawsuit has expired; (2) “assumption of risk” – that the plaintiff knowingly exposed him/herself to the danger or harm; and (3) “accord and satisfaction” – that the parties have already settled the dispute. Affirmative defenses usually have to be raised in the Answer or else they are deemed to be “waived” and the defendant will not be able to rely on them later.
STEP 4 – Send a Copy of the Response to the Plaintiff. A copy of the response you filed with the court must be sent to the plaintiff and/or the plaintiff’s attorney. Most courts require you submit a “proof of service” to the court.
NEXT STEPS – After you have filed a response to the lawsuit, your attorney will begin discussions with the plaintiff’s lawyer to explore settlement opportunities. In the meantime, the parties will engage in the discovery phase, which is the exchange of relevant information about the underlying dispute. Throughout the process there are usually hearings scheduled with the judge to try to keep the case moving along efficiently. Settlement negotiations may be ongoing as well. While most cases settle out of court, if the parties can not reach an agreeable settlement then the case will usually go to trial where either and a judge or a jury will decide who should prevail.