10 How Do I Defend a Lawsuit?

Geoff had no idea who this awkward man was who was approaching him across the parking lot, while offering him a large envelope. So far as Geoff could tell, he’d never before seen the man, who looked like a cross between a private detective and courier.  But before Geoff could do anything more than nod in answer to his name, the man had turned and gone, leaving Geoff holding the large envelope. Opening the envelope cautiously, like it might hold a bomb or poison, Geoff pulled a sheaf of papers out, scanning them to see what was up. Then, it hit him: he’d just been served with a lawsuit. Geoff’s face drained, and he steadied himself against a sudden, light-headed feeling. Finally, shrugging, Geoff turned to head into the office, thinking ruefully, there’s a first time for everything. 

Defense

Getting served with a summons and complaint starting a lawsuit can be bewildering, especially if you had no warning that it was coming. In the usual case, you’d have first received and rejected some sort of demand. But opposing parties sometimes don’t want to tip off their intentions. They’ll have you served with the divorce papers while you’re at work and they’ve been at home moving their things and the children to the in-laws. Or you’ll get the lawsuit papers from a company of which you’ve never heard, demanding that you desist using their trademark you’d never seen. Surprise lawsuits happen. But whether you’re mentally and emotionally prepared or not, you have a steadying sequence to follow for diligent defense. After all, you’re not the first to face a lawsuit. Follow the routine, even if for you it’s not at all routine. It’s not the end of your life. It’s just ... a lawsuit.

Review

The first thing to do when receiving a summons and complaint initiating a lawsuit is obviously to read and review the lawsuit papers. Don’t procrastinate. Read the papers as soon as you receive them. Get past the suspense quickly. It isn’t helping you. First, confirm how much time you have to respond to the papers you just received. The first page of the summons should tell you, whether 21 days, 28 days, 30 days, or another period. On whatever calendar you use, note that deadline so that you can confirm that you’ve made a timely response and don’t suffer a default. Then, read the complaint to find out what’s going on including who’s suing you and why. If the papers include a temporary restraining order, note its terms and comply. Then, gather and secure every document and other items relating in any way to the lawsuit. Do the same with electronically stored files and information including emails and text messages. Do not discard or lose anything material to the lawsuit. 

Insurance

As soon as you get your mind around the complaint’s allegations, discern whether you might have insurance covering any alleged loss. Your insurer requires that you allow it to handle any claim or litigation for which it may owe coverage, generally including choosing and paying for your lawyer. Failure to notify and involve your insurer may void the coverage. If the matter relates to a motor vehicle accident, immediately notify your vehicle insurer. If the matter relates to something adverse happening to someone in or around your residence, immediately notify your homeowner’s insurer. If the matter involves liability for something you said or did, notify your homeowner’s insurer, malpractice insurer, or any other insurer whose policy may provide you with personal or professional liability coverage. If the matter involves your business, notify your commercial general liability insurer. If the matter involves your employment, notify your employer, who may have insurance and may owe you indemnity and defense. If someone else should defend the lawsuit and pay for any liability, put them on immediate notice with a written request and demand.

Representation

Unless you receive a prompt response from an employer, insurer, or other person or entity indicating that they are accepting your tender of the lawsuit and handling your defense, you’ll next need to determine whether you need to retain your own attorney to undertake your own defense. If the lawsuit involves any substantial right or interest, then you should likely have your own attorney. Even if your opposing party indicates that they are prepared to work things out without fighting, such as in a “friendly” divorce, you should generally have your own attorney, at least to advise you as to the proposed consent judgment. Attorneys cannot represent both sides in litigation. Doing so represents an unethical conflict of interest. Even if you and your opposing party chose the attorney together and are prepared to work things out, the attorney will ultimately only be representing one of you. The other of you should get your own attorney, if only to tell you what the proposed settlement might be missing in your favor. See the above chapter on choosing an attorney.

Restraints

Some lawsuit papers come with a temporary restraining order (TRO) restricting the defendant from draining accounts, removing property, entering premises, or other actions. Promptly and fully comply with any such order, even if unfair and severely disruptive. Violating the order could lead to your arrest and contempt of court sanctions. TROs issued ex parte (without the other side present) generally require the court to offer the restrained party a hearing within a few days at most. If you need relief from the TRO, have your attorney schedule a prompt hearing. Do not violate the order, even if the party obtaining the order against you gives you oral permission to do so. Don’t get caught in a trap. If the party obtaining the order overreached and deceived the court, let the court make that party pay for doing so. Don’t take the law into your own hands.

Answer

In the usual case, you and your attorney will need to respond to the complaint within the allowed time, by filing a written response in court. The typical response is an answer that admits or denies each numbered allegation in the complaint. See the example answer, defenses, and third-party complaint in the appendix at the back of this guide. Don’t admit allegations the evidence for which you don’t know. You are generally stuck with your judicial admissions in an answer. If you don’t know whether what the complaint alleges is true or not, and you’re unable to confirm within the allowed time, then a denial for the time being, until investigation and discovery are complete, is appropriate. Provide your attorney with your documentation and explanation, allowing your attorney to draft the answer, involving you to the extent your attorney believes necessary or appropriate. Divorce and business attorneys defending lawsuits may work very closely with the defendant client, while insurance defense attorneys not so much, depending on case facts and circumstances. Confirm that your attorney files your answer by the date your calendar shows your response is due.

Defenses

An answer typically includes affirmative defenses, as the example in the appendix shows. After answering each numbered paragraph of the complaint, your attorney may list several defenses that may apply, depending on what the evidence shows. Common defenses include that the statute of limitations has expired, the plaintiff unreasonably delayed in bringing the claim to the defendant’s detriment, the complaint fails to state a legal claim, the plaintiff has failed to mitigate damages, the parties reached a prior accord and satisfaction, or the plaintiff has unclean hands. If your answer fails to plead a defense, you may lose that defense as a procedural matter. Better to plead defenses in the alternative and awaiting discovery than to lose them later. 

Motion

The court rules applicable to your case may permit you to respond to the complaint with a motion rather than or in addition to an answer. Your attorney may, for instance, move to dismiss the complaint if it fails to adequately state a legal claim, if the statute of limitations clearly bars it, if the plaintiff brought the case in the wrong court, or on other legal grounds. Don’t expect to file a motion just because you have the stronger evidence. The court cannot generally resolve fact disputes by motion and must instead do so at a hearing or trial. A motion with or in place of an answer instead generally tests the legal basis, not the factual basis, for the claim. Alternatively, your attorney may move for a more definite statement of the claim if the complaint is too vague to answer. Don’t be disappointed at some preliminary wrangling of this sort. It could lead to your victory. See the following chapter on motions.

Counterclaim

The court rules applicable to your case likely permit you to file a counterclaim against the plaintiff, along with your answer. Counterclaims are common in business, divorce, boundary-dispute, and other relationship-based cases but less common or even rare in personal-injury, malpractice, and other cases. If, though, you have a counterclaim against the plaintiff that arises out of the same transaction or occurrence as the one that the complaint alleges, then you must generally plead it now, in the same case, or see it barred later. Sometimes, the best defense is a good offense. A counterclaim can at least level the playing field and even gain the upper hand. You likely also have the opportunity to bring a third-party claim when answering the complaint, against any third party who may owe you for what the complaint alleges you owe the plaintiff. See the example answer, defenses, and third-party complaint in the appendix at the back of this guide. If, for instance, your insurer refuses to defend and indemnify you, then you might sue the insurer in the same lawsuit that you claim it was supposed to defend.

Discovery

Discovery can be a big part of defending a lawsuit. Discovery, addressed more thoroughly in a later chapter, is the process of learning the evidence the opposing party and others have that may be material to your case. Discovery can involve months of back-and-forth communications with the opposing party through the attorney representatives. Discovery can also involve court motions and depositions. Gradually, discovery can help the parties adjust their positions including how they feel about settling the case. And that is largely its point, to facilitate resolution by removing surprise and getting everyone on more or less the same page, with the same information and evidence. Discovery can also be long and expensive enough to test the parties’ resources and commitment to the litigation. Do a good job in discovery, and you just may successfully defend your case.

Settlement

Settling your case may be your best way of defending it. Most defendants would prefer an outright win. But many defendants prefer a digestible settlement over the risk of a catastrophic court-imposed loss. Other cases, like personal-injury lawsuits with insurance coverage, can be more a matter of economics where reducing litigation costs through a settlement can make sense. And some cases, especially divorce and business cases, involve such close and complex relationships that the parties are generally best working out their own terms for resolution rather than accepting a blunt court-imposed outcome. You be the judge of whether to defend your case to the hilt or to settle it.

Trial

If your case goes to trial rather than settles, like the great majority of cases settle, then you’ll need to make a convincing presentation to the jury or, if your case involves a bench trial, to the judge. See the later chapter with further details on trials. A trial is the fulcrum on which a case’s filing, preparation, settlement, and resolution hangs. Even if you don’t try your case, you still measure its settlement value against the probable trial outcome. Even if you don’t try your case, you still prepare your case through discovery as if you will try it, to ensure that you can settle based on how well you prepared to win a trial. Everything turns on anticipating the trial’s outcome, and so you need to measure your every action against its impact on a trial. Trials thus have an outsized influence well beyond the fairly slim probability that you’ll actually experience a trial. Prepare to defend your case effectively at trial, with all the evidence you could muster and your most-skilled trial attorney you can afford. Everything else hinges on your trial preparation.

Appeal

If you lose your trial, an appeal may snatch victory from the jaws of defeat. Appeals are not exactly a second chance at a trial. You must generally show an error in the trial or pretrial proceedings that caused or materially contributed to your trial loss. See the later chapter on appeals for more details. So, don’t skimp on trial preparations or presentations, assuming that you’ll simply appeal if you lose at trial. The trial is generally your only chance to present your evidence and make a good record showing that you should have prevailed. Put your best foot forward at trial, if nothing else than to make a good appeal record to reverse an adverse trial result. Don’t take an appeal as a given. You may not have the grounds for an appeal. You may also need a different attorney who has appellate skills, incurring further costs. Appeals are backstops, not strategies.

Reflection

Did the lawsuit calling you to defend surprise you? Or did you see it coming? Have you checked for insurance coverage for any of the lawsuit’s claims? Have you retained a qualified defense attorney if your insurer hasn’t done so for you? Do you understand the costs and terms of your defense attorney’s representation? Did the lawsuit papers include a temporary restraining order with which you must comply? Have you preserved all evidence including electronically stored information? Do you understand what the complaint alleges? Are the allegations factually true or untrue? What affirmative defenses should you plead in your answer? Do you have a legal basis on which to move to dismiss the complaint instead? Do you have a counterclaim to plead? Do you have a third-party complaint to plead, bringing into the lawsuit someone else who should pay for what the plaintiff alleges? What do you need to learn in discovery? How could what you learn affect your settlement position or trial strategy? What do you need to do to prepare for trial? Does your attorney have the skills necessary to take an appeal if you lose at trial?

Key Points

• Defending a lawsuit successfully generally requires skill and diligence.

• First preserve all evidence relating in any way to the lawsuit.

• Check for insurance and notify insurers when served with a lawsuit.

• Retain qualified defense representation if your insurer doesn’t do so.

• Comply with restraining orders while challenging them at hearing.

• Answer each allegation in the complaint, being wary of admissions.

• Allege affirmative defenses in your answer, seeking dismissal.

• You may have the chance to move to dismiss instead of answering.

• You may have a counterclaim to plead arising out of the same matter.

• Adjust your defense based on what you learn during discovery.

• Settling the case may be the best way to get the best result you can.

• Preparing for trial is key to both favorable settlement or trial success.

• An appeal is only a backstop against an unfair and reversible loss.

Read Chapter 11.