So You've Been Sued . . . Now what?
You may be reading this because you just got sued. First of all, you’re far from alone. 20 million civil cases are filed in the United States each year and 36%-53% of small businesses are involved in at least one litigation in any given year. So, you've been sued . . . what do you do now?
Responding to the ComplaintThe first thing you will receive is a summons and complaint. The Summons will tell you how long you have to respond to the Complaint that has been filed against you (usually 20 days) and the date for your pretrial conference, if one has been scheduled.
It is very important that you respond within the deadline stated on the summons and attend any scheduled pretrial conference or other court date – if you do not, a default judgment will likely be entered against you, resulting in you losing the case automatically. If you have a prior commitment that prevents you from attending the pretrial conference or any other scheduled court date, you must ask the court to reschedule or “continue” the hearing.
You should start looking for attorneys as soon as possible after being served with a summons to allow time to schedule a consultation to discuss your case with an attorney and file your response in a timely manner.
Your response, called an “Answer,” should admit, deny, or state that you have insufficient information to either admit or deny each allegation in the Complaint. Your Answer may also include “Affirmative Defenses,” and a “Counterclaim,” as applicable. Affirmative Defenses are the reasons you believe you should not be held responsible for the Plaintiff’s alleged losses. A counterclaim states causes of action you have against the Plaintiff related to the transaction described in their Complaint. If you would prefer your case be heard by a jury rather than a judge, you must demand a jury trial in your Answer.
This is where consulting a lawyer becomes essential – some Affirmative Defenses and Counterclaims may be deemed to be waived if not asserted in this first response. Further, each alleged offense, or “cause of action” has elements, or things that must be proven to make the case. If they do not allege each element, the Plaintiff’s Complaint could be dismissed for failure to state a cause of action! There are also other bases to dismiss a complaint, which your lawyer will be able to advise you of. You should consult an attorney to make sure that you file the appropriate response (or motion to dismiss, if applicable), understand any Affirmative Defenses and/or Counterclaims available to you and assert them properly.
DiscoveryIn order to prove their case, one side might need documents in the other’s possession, or might need a witness to testify under oath regarding the circumstances at issue. Discovery is an evidence-gathering process for the parties. You can ask for the other party to produce documents relevant to the issues in the case, answer relevant questions under oath in writing, admit certain relevant facts, or sit for a deposition to be questioned in person under oath.
Each cause of action has elements that must be proven, and your discovery should generally be focused to proving the elements of the causes of action or defenses alleged. The discovery process can be complex, and it is best to hire an attorney for this process because they will be aware of the causes of action or defenses involved and the elements that need to be proven.
One of the differences between the Small Claims Rules and the Florida Rules of Civil Procedure is the discovery process. An opposing party represented by an attorney may not be entitled to discovery from an unrepresented party under the Small Claims Rules and this may be a consideration when deciding whether you should move to invoke the Rules of Civil Procedure in a Small Claims action or agree to the other party’s request to invoke them.
Invoking the Rules? What is that?If you are bringing or defending a Small Claims lawsuit, you may be asked to stipulate (or agree) to invoking the Florida Rules of Civil Procedure. If you are not sure of the differences between both sets of rules, it may not be to your benefit to agree to this.
MediationBefore the case goes to trial, most jurisdictions have a process by which the parties sit down, negotiate, and attempt to resolve their differences. This is called mediation, and it is, for all intents and purposes, mandatory in some form or another for most types of cases. In mediation, the parties sit down to discuss the claim(s) with a neutral third party, called a mediator, who will attempt to help the parties come to a resolution. Over 90% of cases settle out of court AND a 2008 study showed that parties who settle get better results. Mediation is confidential, so the parties cannot disclose anything that happened in mediation. That allows the parties to talk openly and honestly about the issues without worrying their frank discussion will be used against them if the case goes to trial.
If the parties come to an agreement, the mediator will write it down in a contract called a stipulation, which both parties will sign and agree to obey. This is a binding contract and can be enforced by the court if one of the parties does not comply.
If the parties do not come to an agreement during mediation, this is called an “impasse.” If the parties declare an impasse, the case will go to trial. In civil cases, this will not usually be a jury trial, like most people are familiar with on television, unless one or both parties made demand for a jury trial. Your trial will more than likely be a non-jury or “bench” trial heard only by a judge.
FAQs: Shouldn't they have to pay my attorney's fees?In general, the “American Rule” requires both parties to pay their own attorney’s fees, unless there is a statutory or contractual provision awarding attorney’s fees to the prevailing party. An experienced Florida attorney will know if there is a statutory provision that would allow the prevailing party to collect attorney’s fees in your case. You should also have your attorney review any applicable contract to determine if the contract allows for attorney’s fees and/or costs.
FAQs: Do I really need a lawyer?In general, you are allowed to represent yourself in court. If you are not represented by an attorney, you are a self-represented litigant, or pro se. However, we highly recommend you hire an attorney as soon as possible if you just got sued for all of the reasons discussed above.
FAQs: How much does it cost to retain an attorney?The cost of retaining an attorney can vary depending on the scope of representation you are looking for, the expertise of the attorney you retain, and other factors.
The first step with almost all attorneys is to have a consultation, where the attorney talks to you about your case and determines what an appropriate retainer fee might be, based on their hourly rate and the predicted number of hours involved. While it may be quite an investment to retain an attorney in your case, having the case quickly and professionally resolved will likely save you money in the long run.