This article will provide an overview of what to expect when the unthinkable happens and you have been sued. Each specific lawsuit is different, but this will provide general parameters of what you can expect and what your obligations are.
Don’t Ignore the Summons
In order to initiate the lawsuit, the plaintiff will serve you with a Summons and Complaint. The Summons alerts you to the fact that you have been sued and the Complaint contains the allegations against you and any other parties named in the Complaint. Do not ignore these papers. There are strict deadlines to respond to the allegations in the Complaint and you must meet those deadlines or a default may be taken against you, which may preclude you from defending yourself later in the case. If you are served with a Summons and Complaint, you should immediately forward them to your insurance agent and/or insurance company. If you have a personal attorney, send a copy to your attorney and they can also assist you with the next step in the process.
Ideally, you will have insurance to cover the claims made in the Complaint, which will provide a defense for you. When you submit the Summons and Complaint to your insurance company, it will review the information available and make a determination as to whether it believes the claims fall within the coverage provisions of your policy. Depending on the claims being made and the coverages contained within your policy, you may or may not have coverage. If you do have coverage, your insurance company will notify you that it has agreed to defend you and will most likely assign defense counsel. The insurance company may also advise you that it is “reserving its rights” with regard to the coverages in the policy. Generally speaking, this occurs when not all the facts of the claim are available to the insurance company and it is not entirely positive as to whether the claims fall within the coverages afforded by the policy. Your insurance company may send you a letter stating that it agrees to defend you but reserves its rights to withdraw the defense should facts come to light that the claims do not fall within the coverages of the policy.
Responding to the Complaint
Assuming either the insurance company appoints your defense counsel or you hire your own private counsel, the first step in the process is to respond to the allegations in the Complaint. Oftentimes, this will mean that your counsel will file an Answer to the Complaint. An Answer is generally a denial of the allegations in the Complaint along with some specific legal defenses that may apply. Alternatively, your counsel may determine it to be appropriate to file a pleading [Demurrer or a Motion to Strike] on the basis that the Complaint is defective with regard to the allegations against you.( Your counsel will file a motion, which will be heard by the Court down the road in the case.)
Once you have appeared in the case, discovery will begin. Discovery is a process of gathering information by all the parties in the case. This may include written questions as well as depositions, site inspections and other fact gathering processes. Depending on the number of parties in the case and the complexity of the case, discovery can last anywhere from a few months to over a year. The discovery process takes up the longest amount of time in the lifespan of a lawsuit.
You will be actively involved in the discovery process in terms of assisting your counsel with responding to written discovery by providing your counsel with the facts relating to your involvement in the lawsuit, documents, job files and any other materials your counsel may need. If you are being defended by your insurance company, you have an obligation under your insurance policy to cooperate and provide all necessary information. Oftentimes, people do not want to think about the lawsuit or participate and will essentially “check out,” which makes it very difficult for counsel to defend them. This is a big mistake as, if you are covered by insurance, your failure to cooperate can jeopardize your coverage and provide a basis for your insurance company to withdraw coverage and the defense of the lawsuit.
You will likely have your deposition taken in the case. A deposition is a question-and-answer session held in a conference room before a court reporter who records everything that is stated. Generally, an attorney for another party will ask you questions under oath. Your attorney will be with you to defend you and make appropriate objections. While the deposition is being taken in a conference room and is somewhat informal, the testimony you give has the same importance and effect as though you were testifying at trial in court. Your counsel will prepare you for your deposition prior to your being deposed. A deposition is a primary tool for parties to uncover facts relating to your involvement in the lawsuit as well as to evaluate you as a witness in terms of creditability, believability and truthfulness.
During the course of the case after much of the facts have been exchanged and uncovered, parties will usually attempt to reach a resolution of the matter. This can be done via several methods, including a Mandatory Settlement Conference at the court or a mediation before an impartial mediator, which usually occurs at an office or mediation center. The purpose of the mediation is to try to reach a resolution of the claims by agreement. The mediator’s role is not to determine who is right or wrong, or who is at fault or not at fault, but to get the parties to agree on an amount of money that can resolve the case. One key factor in reaching resolution is the cost of moving forward with the continued litigation. If you are being defended by an insurance company, under the terms of your insurance policy, the insurance company will have primary and possibly sole authority to decide whether or not to settle the case. Your personal desire to settle or not settle will likely not be considered in the case so long as the claims against you fall within the amount of your policy limits. It is often the case where a defendant believes they did nothing wrong and the plaintiff should get nothing, but the insurance company determines that it is going to settle the case and pay an amount of money because of a number of factors, which include its costs in paying for continued litigation, its risk of a possible adverse judgment at trial against you (which it would be responsible for paying), and other factors. Your counsel will have evaluated the case from a liability and damages standpoint and should have a general idea of where a reasonable settlement would be for the matter. More than 95% of cases settle before trial.
If a resolution of the case by settlement is not achievable, the case will proceed to trial. Most likely you will have a jury trial, but it could also be a trial before only a judge. Depending on the complexity of the case and the number of parties, a trial could last anywhere from a few days to several months and you may or may not be required to be present for the entire trial. You should discuss with your counsel what your counsel’s needs are with respect to your attendance as well as your own personal and work schedule. Even though you have reached the trial stage, settlement is still possible. Settlement can occur at any time during the life of a case, and oftentimes parties will be more motivated to settle on the eve of trial or at the beginning of trial after certain testimony has been made to the jury.
If you are sued it is important that you immediately forward whatever documents you are served with to your attorney, insurance agent and/or insurance carrier so that steps can immediately be taken to protect your rights and interests. Being sued is not a pleasant experience, but by being engaged in the process and providing your attorney and insurance carrier with accurate information, they will be able to properly evaluate the claims against you in order to defend against the claims and ultimately reach a resolution of the case as soon as possible.
About the Author
The previous guest post was written by Paul Smigliani, Esq. Admitted to practice in California and Arizona, Paul's areas of practice include insurance defense, real estate litigation and commercial general liability. He is a partner at Munro Smigliani & Jordan LLP, an A-V rated law firm specializing in civil litigation and insurance coverage analysis. Feel free to contact Paul by email at firstname.lastname@example.org