There’s a knock on the door. It’s a process server with a stack of papers for you. You have been served with a court summons and a complaint. You’re being sued.
There are lots of things to think about and do. Here are your first nine steps. Remember, as always, that I am not a lawyer, and this is not legal advice. But it’s for sure what I do when I get sued:
It’s not the end of the world. Nothing you do or decide to do now will come to any good if you panic. Do nothing at all for at least 24 hours. Simply acknowledge the fact that you’re being sued and deal with the emotional impact on you and your family.
2. Decide if you’re going to fight, default, or seek an immediate settlement.
Take your time with this, say 3–4 days. If the person suing you is right and there’s no defense — and if you can afford to give in — then just let it go. Call and humbly ask what they’ll accept in exchange for a voluntary dismissal of the case against you. Or, if bad blood prevents humility, do nothing and let the court enter a judgment against you.
3. Get ready for battle if you decide to fight, even if you’re fighting for a settlement.
Set up a case management solution that helps you prepare for the long haul and stay organized. Maintaining a file cabinet for all the paperwork can overwhelm you fast. That’s not something you want to waste time on. You’ll need to get up to speed quickly on legal research and writing, and you’ll need tools that help you deploy that knowledge.
4. Get more time.
I can’t stress the importance at this stage of filing a motion for extension of time. On the day you’re served, the plaintiff has the advantage. They know the strengths and weaknesses of their case, and may have anticipated your defenses. You haven’t had time to even think about it, much less to formulate a defense. The summons may give you a few weeks to respond, but unless you’re hiring a lawyer or have already grasped the relevant law and civil procedure, that’s not enough time. File your motion 10 days before your response is due, asking for an additional 30 days (check local rules or statutes for what’s allowable), and stating that you’ve been unable to find a lawyer.
5. Review the complaint line by line to understand the claim(s) against you.
What is the tort you’re alleged to have committed? Are you being accused of an intentional or unintentional (negligent) tort? What factual allegations are stated for each count? What are the alleged damages? Or is the complaint more equitable in nature? Find out why you’ve been sued and what the plaintiff wants.
6. Identify the elements of each claim in the complaint.
Start your legal research with Google Scholar, and be sure to select ‘Case Law’ for your state or jurisdiction on the main search page. Use keywords and phrases in the complaint to conduct your search.
7. Review the summons for any failures in service.
Did the process server hand the papers to your teenage daughter or neglect to check your active-duty military status? Your state may deem that ineffective service. Similarly, review the complaint for defective or missing exhibits. In many states (Illinois, for instance), when a claim is based on a written instrument, the instrument must be attached to the complaint. If you find a defect in either exhibits or service, consider filing a motion to quash the summons and/or complaint. If you’re right, your plaintiff be ordered to cure any defects within a certain period of time. Be careful to highlight a legitimate defect, or you may lose the opportunity to seek dismissal of the complaint if the judge thinks you’re slowing things down unreasonably.
8. Review the complaint for defective or missing elements.
Does the complaint contain a factual allegation to match each of the necessary elements of the claim(s)? Review your state’s case law on dismissals of similar claims, and check the complaint against those cases. Are there any defects in the factual allegations?
9. Move to dismiss the complaint.
Use your comparison of the facts in the complaint and the necessary elements of the claim(s) to argue that the plaintiff has not stated a proper claim. Don’t waste ink disputing any of the plaintiff’s facts. The judge must assume they’re true at this stage. Focus on the defects in the complaint and back up your arguments with case law. Be sure to work with the judge’s assistant and the opposing party to schedule a hearing on your motion. Secure a court reporter for the hearing, and file a notice of hearing. These steps will get you a fast start on the legal research and writing you need to do in litigation, and they may be all you need to do. You’ll be extremely lucky to get the case dismissed permanently, but it’s possible.
More likely, if you’ve found a real problem with the complaint, the judge will dismiss the case with “leave to amend,” which means the plaintiff can simply file a corrected complaint. You’ll have another shot at dismissing it and you should take it. Odds are the judge will deny your motion and order you to answer the complaint. But because the hearing will likely take place months after you were served, you’ll have gained the time needed to prepare a proper defense to the claim(s). When the judge orders you to answer, it won’t hurt to ask for even more time.
Do you have additional first steps for dealing with a civil complaint? Share in the comments below.