You’ve been sued—now what?
It’s estimated that over 40 million lawsuits are filed each year in the United States. The average adult in the United States has roughly a 10% chance of being sued and that number increases if you are a business owner. In 2010, one source indicated that over 500,000 cases were filed in Pennsylvania alone. These statistics prove that we live in a litigious society. So, what should you do if you are sued? This article will help answer that question and guide you through the five steps of this process. As always, you should consult with an attorney before taking any action as each situation is unique.
1. Don’t Panic
Being sued is unsettling in many ways, so the first thing to remember is not to panic. After a suit is filed, a complaint (or in some cases a writ of summons) is served on the defendant(s). (Defendant = the party being sued.) If filed in state court, the complaint is normally required to be delivered to you by the Sheriff of the county you live in, even if the suit is filed in another county. Once you have gotten over the initial shock, read the complaint over carefully to gather why you are being sued, what is the plaintiff (the person suing you) saying you did wrong, and when and where the events claimed took place. If you have a lawyer you deal with regularly, contact that attorney and seek advice on what to do next.
2. Gather and preserve relevant documents and information
Once you have reviewed the complaint and understand the basis of the claims made, you need to compile documents, photos and other relevant records that may pertain to the claims made and your defenses (reasons you have that you are not responsible for the claims made). This may involve assembling information you already have or obtaining it from a police department or other government agency.
If you are a business owner and the suit involves your business activities and you had prior notice of the incident involved, you should already have a report or other record of what occurred with information on witnesses, facts of the incident and any subsequent follow up or investigation. If that was not done when the incident occurred, you should assemble a list of potential witnesses and, if possible, confirm what they witnessed and their contact information for the near future (6 months). If you think they may be hard to locate later, you may want to consider having them write out or record a statement. Remember you will probably have to turn these over to your opponent during the suit so carefully consider what that witness will say before doing so.
You must preserve any relevant documents, photos, statements, and other records relevant to the incident. If you are found to have intentionally destroyed such information or failed to take steps to adequately preserve it, you may be found to have engaged in spoliation of evidence. If this occurs, your opponent will be entitled to have the court or a jury instructed it must presume the ‘spoiled’ evidence would have been harmful to your defense. Note that this obligation to preserve relevant evidence exists even before a suit is filed if it is found you had reason to believe that litigation would result, and you failed to preserve the evidence.
3. Notify your insurance company
Most individuals and businesses which are sued have insurance that may cover the claims made. This is particularly true in automobile accidents, slips and falls and similar accidents on your property, fire losses and other claims involving physical injury or property damage. These policies contain notice provisions that normally require that the company be notified as soon as the policy holder becomes aware of the suit and may deny coverage after a certain amount of time has passed with no notification. If your policy applies, the company will connect you with a lawyer to defend you. If your policy does not apply, you will still want to engage an attorney to defend you and represent your interests and perhaps countersue the plaintiff if appropriate.
4. Respond to the complaint
You will need to respond to the complaint in some manner within 20 days from when you are served. If you do not, a default judgment may be entered against you (but not until you receive a notice from the plaintiff to seek default in 10 additional days) which may jeopardize your assets if it is a money judgment or your property rights. If you do not qualify for an attorney from your insurance company, ask some trusted friends if they have any recommendations. Most county bar associations provide a lawyer referral service which should be able to connect you with an attorney in the county qualified to defend you in the matter. Although you may represent yourself, this is not recommended as you may miss the applicable deadlines, fail to respond properly, or miss important defenses that need to be asserted. If you are having difficulty finding an attorney, you can ask your opponent for additional time to respond but they are not obligated to agree. If they do agree, put it in writing along with the specific number of days or the deadline agreed to and provide a copy to your opponent confirming the agreement.
5. Work with and follow the advice of your lawyer
This may seem obvious but is sometimes overlooked. Be honest and forthright with your lawyer about both the facts that help you in defending the suit but also with facts that may not be so helpful. Your attorney would rather hear from you directly concerning problems or harmful facts so he/she may plan how to deal with those. Understand that whatever you discuss with your lawyer or persons working for your lawyer is protected by the attorney-client privilege. Also, if you are on social media, advise your attorney as to anything you may have posted on such accounts that pertains to the incident involved whether as photos or text.
In summary:
- Don’t panic.
- Gather and preserve relevant documents and information
- Notify your insurance company
- Respond to the complaint
- Work with and follow the advice of your lawyer
Being sued is an event no one wants to find themselves a part of. It is disruptive, time consuming, and can be a financial burden. However, it can be less traumatic if you keep the above tips in mind.
If you find yourself being sued and in need of legal counsel, contact the Chair of Nauman Smith’s Litigation Practice Group, Craig Staudenmaier at cjstaud@nssh.com or call (717)236-3010. Nauman Smith’s attorneys represent businesses, individuals, and government agencies in litigation matters throughout Pennsylvania in both state and federal courts.