What to do if you are Served with a Lawsuit
By Michael D. Stewart, Esq.
Law Offices of Michael D. Stewart
If you are served with a lawsuit in Florida, you generally have twenty (20) days to prepare and file an Answer to that lawsuit admitting or denying the allegations contained therein. Once a process server comes to your house or place of business and hands you the lawsuit papers (“serves you”) the clock begins to run.
1. The first thing you need to do is contact a lawyer who can advise you of your rights and explain what you are being sued for. Many lawyers offer free consultations at this point. As lawsuits are often written in “legalize”, the attorney can explain the causes of action or claims contained in the suit against you. The attorney can question you concerning the allegations contained in the lawsuit and can determine what defenses you might have to the lawsuit.
2. The lawyer can also determine after speaking with you whether you might have a counterclaim against the person or company suing you which needs to be raised. This would be as if you were suing the person or company yourself. The lawyer can also advise you as to Affirmative Defenses as to why you are not liable under the lawsuit, and can also prepare both procedural defenses, as well as substantive defenses to the lawsuit. Procedural defenses would be something like if you are being sued under a contract but the person suing you (the Plaintiff) did not attach a copy of the contract, preventing you from being able to adequately defend yourself.
3. Your lawyer would then prepare and serve a copy of your Answer to the lawsuit on the Plaintiff. Other times, such as in the example above where the Plaintiff failed to attach a copy of the contract to the lawsuit, the lawyer could file a Motion to Dismiss the lawsuit, which could then force the Plaintiff to either abandon the suit or necessitate them redoing the lawsuit and refilling it. Other reasons the Plaintiff’s suit might be subject to a Motion to Dismiss would be where the Plaintiff filed the lawsuit in the wrong court or in the wrong state, or if they filed it against the wrong party. Additionally, as there is a certain time limit within which to file a lawsuit, called the Statute of Limitations, it may be the case that the Plaintiff has not filed the lawsuit within the Statute of Limitations and is therefore time barred from continuing with the suit.
4. Other times, a motion may be made to transfer a case to a different court, such as Federal Court, or to transfer the case to an Arbitrator. Arbitration clauses are becoming more common and force the parties to seek out a third-party arbitrator, who is not a court, and will hear the evidence and make a decision on the case, like a judge would.
5. In some cases that are extremely urgent, one or the other party can file a motion for an Injunction, to prevent a party from committing acts it is currently engaged in.
6. If your lawyer has filed an Answer to the Complaint, together with a Counterclaim on your behalf, the other side would then need to file a response to your Counterclaim, as if they were the Defendant.
7. Usually, the lawyers from both sides will consult with each other to discuss the merits of their client’s respective cases and to determine whether a settlement might be possible. If not, the case will usually proceed with Discovery.
8. In Discovery, both sides are allowed to serve the other will a variety of documents and to take the testimony of important witness.
9. Important written Discovery documents include Requests for Admission, where you demand that the other side admit or deny, under oath, the questions you pose.
10. Another important Discovery document is an Interrogatory where you demand that the other side, under oath, answer your questions.
11. A third Discovery document is the Request for Production, where your lawyer will demand that the other side provide you with documents that are relevant to your case or tend to lead to other evidence which will be important to the case.
12. One of the other important Discovery devices is the Deposition. In a deposition, your lawyer will call in an important witness, usually to his or her office, and ask that witness questions under oath concerning the case. Present is a court reporter who transcribes everything that is said on the record, for later use at trial if necessary.
13. Throughout the foregoing, either side can file Motions, which are essentially documents asking the court to do something, be it to compel a witness to show up for a deposition, or to dismiss certain aspects of the claims which from the evidence presented are no longer litigable.
14. Once the evidence is gathered and the parties have their trial strategies set, they may, or be told to by the judge, enter into a non-binding mediation. Here, an independent mediator will be chosen by the parties who will here each sides position and work to try to bring the parties closer to an agreement on the issues in the case. The mediators goal is to ultimately assist in resolving the case before trial.
15. Should mediation, or other modes of settlement talks be unsuccessful, your lawyer and the other sides lawyer will prepare for trial. The judge will likely have a pre-trial conference in his or her chambers where the judge will inquire as to each party’s case. The parties will have already prepared and presented to the judge a list of witnesses each party intends to call at trial, the likely evidence presented, any expert witnesses that will be called, the amount of time they will need for the trial, etc.
16. Then the trial to decide the initial outcome (the outcome can often be appealed to a higher court on certain controverted issues).