5 THINGS TO DO, AND 5 THINGS NOT TO DO

AUTHOR: John Branson, Esq 

The American legal system is the envy of the world, or if it isn’t, ought to be – but that’s not to say it’s any fun being a defendant in a civil case. It is likely to be aggravating, laborious, and expensive, at the best – so the last thing you want to do is to make it any worse than it has to be. Here are some things to do immediately upon being served with the papers:

1. Docket the response date. There will be a deadline on the Summons, which will be served on you with the Complaint.These can vary, depending on the Court in which the case was filed, but generally it will be 20 or 30 days from the date of service. Calculate the deadline and make a note of it, so it doesn’t sneak up on you. Do not fail to respond, either on your own or through a lawyer.

2. Call your attorney, if you already have one, or ask people you trust. Unless the case is very small and simple, you will be at a huge disadvantage if you try to handle it yourself. Also remember that ChatGPT is not licensed to practice law in any jurisdiction, so get a lawyer. As a last resort, run an internet search to find a lawyer. Send the lawyer any key documents – contracts, invoices, receipts, photos, etc. Don’t forget to tell the lawyer if you think you might have a counterclaim against the plaintiff, or a crossclaim against someone else, or whether some other person or entity might be liable for all or part of the damages.

3. Pull out any and all insurance policies and call your insurance agent. You would be amazed at the types of claims insurers sometimes cover on business liability policies and even homeowner’s policies.Do this right away, as many policies have deadlines for notifying the carrier of a claim, and you have a “duty to cooperate” with your carrier in any event. Ask the agent/adjuster about whether the insurer will provide and pay for a lawyer, and/or will pay the lawyer you already have and trust – the best of all worlds. Even if liability coverage looks extremely doubtful, many times the insurer will pay for a lawyer pursuant to the “duty to defend”, even if the insurer reserves the right not to pay any damages. Legal fees are expensive, so this is a nice benefit.

4. Take immediate steps to preserve anything that might be evidence. This could be letters, memos, photos, videos, texts, emails, parts of a vehicle or equipment that was involved in an accident – anything. If there are friends or employees or family members who may be involved, or other potential witnesses who may have evidence, ask them to do so as well.Start a list of contact information for potential witnesses.

5. Consider making notes. Ask your lawyer if he or she wants you to send the lawyer a recollection of names, dates, times and places of relevant events and conversations while they are fresh in your mind, even though you think you will remember the details forever – chances are, you won’t. Don’t forget to note contact information of potential witnesses and ask them to let you know if any of it changes. It is important to send it only to your lawyer in order to preserve the protection of the attorney-client privilege, and it’s a good idea to ask the lawyer to confirm the request for notes in an email or letter.

Here are some things not to do when served with a Complaint:

1. Don’t fail to preserve evidence, particularly electronic evidence such as emails and texts. Don’t alter or destroy anything that might be evidence and remember, it’s not just a duty not to delete or destroy, it’s a duty to preserve. Cell phones get dropped in water. Computers get hacked or ruined by lightning. Emails get “written over”, etc. etc. Take “reasonable steps” to preserve evidence on such devices.

2. Don’t change or delete anything relevant on social media, such as Facebook/Twitter/Instagram, etc. That’s called “spoliation” of evidence, and the sanctions for doing so can be severe.Whatever is on there, leave on there; preserve it somehow.

3. Don’t create new evidence. Don’t send emails or make social media posts or do internet or AI searches or even have conversations with friends or family that could come back to haunt you. This tip seems self-evident, but this behavior is surprisingly common, particularly in the shock of first learning of the lawsuit.

4. Don’t hide, give away, dissipate or transfer assets for less than fair consideration, in the face of a lawsuit. That’s called a “fraudulent conveyance”. You are not the first person to think of doing that, there is a whole body of law regarding fraudulent conveyances. It is usually easy to trace and recover, and it makes you look guilty.

5. And finally, don’t panic. Take a deep breath – or three or four.The American legal system is not perfect; after all, it’s run by humans. But in my opinion, it’s the best such system ever devised by humankind. While you may not enjoy the experience, chances are you will come to believe you were for the most part treated reasonably fairly, and with dignity and respect. At the very least, follow these tips and don’t make it any worse.