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.
If you just got sued, you probably have lots of questions, not the least of which is:
What do I do next?
The 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.