If you are served with a lawsuit, your next steps are very important and time sensitive. First, carefully read the papers you were served. These may contain local court rules and deadlines you will need to follow. Next, decide whether you need or want an attorney. If you choose to not hire an attorney, you will want to familiarize yourself with the state, local, and court rules for the lawsuit. Finally, you or your attorney will decide how to respond to the lawsuit.
Do You Need An Attorney?
The answer depends on you and your case. In some lawsuits, such as small claims, an attorney may not be needed. However, it is always a good idea to find a local, experienced attorney and schedule a consultation as soon as possible. If you are not sure what type of attorney to contact, you can post your case and get matched with an attorney near you.
If you cannot afford an attorney, a legal aid office near you may be an option.
What If I Choose to Represent Myself?
If you represent yourself, it is important to understand the legal terms and process involved. Remember, if you do not feel comfortable at any time, you can always find an attorney and discuss your case.
While every lawsuit and process, is different, the following will provide a general overview to help you defend yourself after being served.
First, the plaintiff files a complaint with the court and requests service of process.
- Complaint: The complaint is what the plaintiff files with the court to start the lawsuit and is typically attached with the papers you receive when you are served. In the complaint, the plaintiff presents his or her story of the facts, tells the court what law or laws support the case, and asks the court for money or other legal action, such as protection. The complaint is often divided into paragraphs, or “counts.”
In most states, you have thirty days to respond to the complaint. This time limit may be shorter or longer depending on the court, type of lawsuit, and legal issues of the case. Sometimes the length of time you have to respond is included in the papers you were served. Be careful, if you do not respond in time, the plaintiff can request a default judgment.
- Default: A default judgment means the plaintiff wins and the court will usually grant the plaintiff the money or legal action requested in the complaint. If default is granted, you may be able to vacate the judgment or appeal the court’s ruling.
There are situations where a motion to dismiss, quash, or strike is more appropriate to file instead of an answer. These motions are filed with the court listed on the service papers or lawsuit and will also prevent a default judgment.
- Motion to Dismiss: A motion to dismiss asks the court to stop the lawsuit altogether. There are many reasons to file a motion to dismiss, such as lack of jurisdiction. An attorney can help you determine whether a motion to dismiss is an option for you.
- Jurisdiction: Jurisdiction means the court has the authority to hear the case and make a legal judgment on it. There are a few types of jurisdiction and the most common types are personal and subject matter. Personal jurisdiction means the court has authority over the plaintiff and defendant in the case. Subject matter jurisdiction means the court has the authority to hear the type of case involved in the lawsuit.
- Motion to Quash Service of Summons: A motion to quash asks the court to void service of summons. Without proper service of summons, the lawsuit cannot continue but the plaintiff can request service of process again and correct the previous mistake.
- Motion to Strike: A motion to strike asks to have the plaintiff’s complaint, or parts of the complaint, removed from the record.
When the above motions are not an option, the first step is to file an answer to the plaintiff’s complaint. In your answer, you may also include affirmative defenses or file a lawsuit in response against the plaintiff.
- Answer: The answer is a pleading you file with the court after you have been served with a lawsuit. In your answer, you have the opportunity to respond to each paragraph, or count, in the plaintiff’s complaint. You can also raise affirmative defenses and include counterclaims in your answer.
- Pleading or Pleadings: Legal documents filed with the court in a lawsuit.
- Affirmative Defenses: Depending on the case and the issues involved, you may want to include affirmative defenses in your answer. For example, if a plaintiff was suing for assault, then self-defense may be an appropriate defense to include in the answer.
- Lawsuit in Response: If you have a lawsuit against the plaintiff, this is called a counterclaim and can be included in your answer. If you do not know if you have a lawsuit in response, an attorney can help.
Regardless of how you respond to the plaintiff’s complaint, it is the most important step to successfully defending yourself.
Not Sure Where to Start? A Lawyer Can Lead the Way.
It seems like there are a lot of options and steps going forward. The right first step can make or break the difference between a successful defense and a losing one. Instead of worrying, contact an experienced and local attorney and they will respond on your behalf to give you peace of mind.