Dave Nelson, Medical Malpractice, Insurance Law, Corporate and Business Law

You’ve Been Served . . . Now What?

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You are sitting down in the quiet of your own home enjoying a cup of coffee and reading a newspaper and your doorbell rings.  You get up and go to the door as you would any other day.  You open the door and someone you do not know hands you an 8 ½ x 11 envelope and says, “You’ve been served.”  The words do not mean anything to you at first until you open the package and read the first page which says “Summons” at the top.  You flip the page and continue reading and see an official looking document titled “Complaint.”  Then it hits you.  The panic sets in.  I’M BEING SUED!!

Unfortunately, in today’s litigious society, many individuals find themselves on the receiving end of a lawsuit even when they did nothing wrong.  To many who have no experience with the legal system, this is a frightening and oftentimes embarrassing experience.

Through this article I hope to provide a brief overview of the litigation process (the process after a complaint is filed) and the steps that should be taken to protect your interests in the event that you find yourself staring at a process server.

The Process of Being Served

There are two ways someone can be served with a complaint.  The first is by certified mail and the next is through personal service (a process server handing you the documents and asking you to sign an acknowledgment of service).  It is important to pay attention to which method of service was used and the date you were served.  If you were served by mail, then you have 28 days to respond to the allegations in the complaint.  If you were served by personal service, you have 21 days to respond to the allegations in the complaint.

Because time is of the utmost importance, as soon as you receive the complaint, you should investigate whether there is any insurance coverage available that would cover the claims that are being made in the lawsuit.  This could come in the form of a homeowner’s insurance policy; a commercial liability policy, if you own a business; and a professional liability policy or an automobile policy, if the claims involve a motor vehicle accident.  Many insurance policies will assign, at the company’s expense, attorneys to defend against claims, if the company believes that the allegations in the complaint are claims that are covered under the policy.  As a first step, you should contact your insurance company and forward them the complaint to see whether it will provide coverage or a defense.

If the insurance company assigns an attorney, then that attorney will likely contact you, and he will be responsible for filing papers with the Court, including an answer to the allegations in the complaint.

If the insurance company does not assign an attorney, then you should consult and retain an attorney immediately to answer the allegations in the complaint.  Any answer must be filed with the court within the time period required (either 21 or 28 days).  If no answer is filed, then the court can enter a default judgment against you in the amount that is claimed in damages because a failure to answer means that you have admitted all of the allegations in the complaint.

Once a default judgment is entered, it is extremely difficult, if not impossible, to set it aside.  Once a default judgment is entered, the other party can begin taking collection action against you, such as garnishing bank accounts and wages.

Responding to a Complaint

Because of the consequences that can occur for failing to file an answer within the time period required, and all of the procedural requirements involved with filing an answer, it is imperative that you hire an attorney immediately, unless your insurance company will assign an attorney.

Many individuals, who are new to the litigation process, do not understand how long cases take to wind their way through the court system.  Personal injury or negligence cases (where an individual alleges that they suffered injury as a result of your improper actions) can take three years from the filing of the complaint to a jury verdict.  Some cases involving complex medical, construction or environmental issues may take longer, and some less complex cases could take less than three years.

After the answer is filed, a discovery period will begin, which is a fact-finding process where witnesses will be interviewed under oath and written questions will be exchanged. The parties will also likely be ordered to a facilitation, which is a meeting between the parties and a neutral third party in an attempt to settle the case.  Ultimately, if the case does not settle, it will go to trial and a jury or a judge will decide the case.

While it is important to know what to do if you have the unfortunate experience of being served with a complaint, it is also important to take steps before any lawsuit is filed to protect your assets, which include maintaining adequate insurance coverage, proper estate planning and proper corporate structuring in the event of businesses.  Hopefully, you will never be sued, but if you are, you will be prepared.