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I’ve just been sued, now what?

Written by: Erik Glen Swanson

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Lawsuits

Posted almost 3 years ago. Applies to Illinois, 2 helpful votes, 0 comments

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Service

Service is the fancy term for being handed the summons and Complaint by the sheriff. Right after service is the time to find and obtain counsel, or tender the summons and complaint to your insurance company, if you’ll be covered. What-ever you do, don’t wait and don’t ignore it, even if the Complaint seems frivolous.

Answer

The next step, in most cases, is to file your Appearance and Answer. It’s usually due 30 days after you’ve been served (but not always… again, check the papers you’ve been served for the actual date in your case), and requires a court fee. This is also your only chance to ask for a jury trial, if allowed (and if the Plaintiff didn’t). Small claims cases (seeking under $10,000) don’t require an answer. The Answer is a straight-forward, but important, document, admitting or denying each paragraph of the Plaintiff’s complaint one-by-one, and bringing any counter-claims you have against the Plaintiff.

Motions on the Pleadings

Sometimes, instead of filing an answer, you file a “Motion on the Pleadings.” In essence, these Motions ask the Court to dismiss the Plaintiff’s Complaint because it’s not properly written, NOT on the merits. That is, for the purpose of these Motions, the actual facts don’t matter as much as the Plaintiff’s ability to write a legally sufficient Complaint. Usually, even if you win your Motion, the Judge will allow the Plaintiff a chance to amend (i.e., fix) his Complaint. There are some times, if a Complaint is exceptionally poorly written, where it’s absolutely necessary. There may be others where there is an absolute defense that may immediately lead to the Complaint being dismissed (note that there are very few of these, but there are some); but oftentimes, the Motions won’t really do anything beyond delay case progress and run up costs. Whether it’s a proper plan in your case is a decision you and your attorney should reach together.

Discovery

Eventually, the Complaint will be answered, and it will be time for discovery. Discovery is the longest part of litigation, when each party seeks information from the other through a variety of means to build their case. It is not uncommon for discovery to take years, especially as some attorneys seem to take perverse pleasure in seeking every document, every person, and to leave no stone unturned. Sometimes this is absolutely necessary, sometimes not. Again, a good attorney will work with you and your litigation budget to attempt, as much as possible, to do what is necessary without wasting time and money doing the unnecessary.

Summary Judgment

After a certain point in discovery (it varies with each case), there will come a point where a defendant has to consider summary judgment. Essentially, summary judgment asks the Court to dismiss the case because all the Plaintiff’s evidence doesn’t (and can’t) prove what he needs to prove under the law. In Illinois, Summary Judgment does not come easily; the Plaintiff merely has to show that legally important facts remain in dispute to survive, not that he’s right about the facts. This is another area where some attorneys file Motions regardless of the chances of success, but again, a good attorney works with you and your budget to analyze the chances of success. It’s rare that a Motion for Summary Judgment will be a “slam-dunk,” which is why it’s good to have an attorney who’ll both keep you informed and be honest with you, not just tell you what you want to hear, to allow you to determine if the time and money spent on a Motion for Summary Judgment is a good investment.

Trial

If the Plaintiff’s case can survive Summary Judgment, it must be tried. Most cases don’t go to trial; they settle at one of the stages above, or with the help of a mediator or arbitrator. Settlement often is the best solution, however, a good attorney will prepare each and every case in his office with the assumption it will go to trial, as to do otherwise may force a client to accept a sub-par settlement out of fear and a lack of preparation, which is never a good thing.