You’ve Been Sued: Now What? The Litigation Process
A process server showed up at your door and handed you a stack of legal documents. After review, you realize you’ve received a Complaint and a Summons, and you can deduce that you are being sued. What should you do now?
Part 1: Hire an Attorney
Everyone has a choice to represent themselves in a civil lawsuit, so why do we have lawyers and paralegals? Legal professionals exist because there is a huge amount of law in this country, and it is typically very time consuming and difficult to pick out which laws apply in any given situation. If you’re on your own, you must also be able to determine how to apply those laws to each unique situation and understand whether any defenses to application of the law are available. On top of all that, the court system is a morass of procedural rules which change from state-to-state and between county-to-county. Hiring an attorney to represent you in litigation will provide you with a guide through the laws and rules of your jurisdiction and establish an advocate who will actively promote your claims or defend your position against the opposing party.
Part 2: Tell Your Attorney Everything
You’ve hired an attorney.Now that you have a fierce and dedicated advocate to help fight your legal battle, it is important for you to tell them everything about the dispute. Tell them all of it up front. Do not withhold important facts or documents in the hopes that they are not important or won’t come out. Your attorney needs all the information to formulate a successful litigation strategy. If you wait until later, it could drastically affect your attorney’s ability to defend you or prove your claims. Waiting until the other side uses a fact or document against you is often too late, and it can seriously compromise your case.
Part 3: Answer the Complaint
If you have been personally served within the state, you will have 20 days to respond; if you were served outside the state, you may have up to 60 days to respond. Regardless of the time frame, you must respond, because a failure to do so within the allotted time can result in a “default” being taken against you. If a default is entered, it means an automatic win for the party who is suing you, and it can be costly to try to set the default aside. Therefore, it is critical that you not delay in hiring an attorney and that you provide them, promptly, with all the information they need to represent your interests. Your attorney will draft an “Answer,” which specifically admits or denies each allegation made in the Complaint you first received. The Answer will also list your legal defenses to the claims against you and it can contain counterclaims (claims for damages against the person suing you) or crossclaims (claims for damages against other named defendants).
Part 4: Discovery
In most cases, once the initial pleadings are filed, the lawsuit enters the discovery phase. It is during this time that both sides exchange written questions and requests for production of certain documents. This can include the physical examination of places and things, and can even involve medical examinations of parties (if either side is claiming physical injuries). This is also the time during which the parties can ask each other questions under oath in a procedure known as a “deposition.” Key witnesses may also have their deposition taken. It is during discovery that each side attempts to gather as much evidence as they can to support their claim. Depending on what is revealed during discovery, your case can grow stronger or weaker.
Part 5: Motions & Alternative Dispute Resolution
Once the discovery process begins, the parties can begin making motions to strike certain claims or defenses. This can help narrow the issues that have to be decided at trial or can eliminate the need for a trial entirely. When these motions are made, each side can submit written factual and legal arguments and provide the court with evidence to support those arguments. There will then be a hearing on the motion before a judge. The judge will review all evidence, consider the arguments, and then decide to grant or deny the motions.
During this time, the parties may choose to engage in mediation or avoid trial through an arbitration process. Mediation is where an outside, uninterested person attempts to help the parties reach a settlement of their claims. If settlement is reached, that will eliminate the need for a trial and the litigation process is over. Arbitration is where the parties bring their claims and defenses to a private individual to decide, rather than a judge or jury. The parties must pay the arbitrator for their time, but an arbitration is usually less formal than a trial and can ultimately be less expensive.
Part 6: Trial
A trial is where a finder-of-fact considers all the evidence and testimony provided and decides who has successfully proven their claims or defenses. The finder-of-fact can either be a judge or a jury. It can take mere hours, or it can take days or weeks, depending on how much evidence and testimony each party wants to provide to support their side of the dispute. In most cases, the judge or jury’s decision is final and binding. One side is ordered to do something or pay money and that is the end of the litigation process.
Part 7: Appeal
If you do not like the decision of the judge or jury, you may have an option to appeal that decision. Not every decision will be appealable; appeals can only be made where there are legal grounds to do so. An attorney can advise you on whether you have grounds to appeal. You have a limited time in which you can appeal (30 days after entry of the trial court judgment) and if you fail to appeal within that time frame, you are forever after barred from trying to appeal.
In Washington, there are two levels of appeal after the trial/superior court: the Court of Appeals and the Supreme Court. The first appeal goes to the Court of Appeals, and if either party disagrees with that ruling, they can then appeal to the Supreme Court. The Supreme Court’s decision is absolute and final (unless there are issues involving the Constitution of the United States, in which case an appeal to the United States Supreme Court may be possible).
Part 8: Collection
Just because you get a court order and judgment saying the other party owes you money does not mean you automatically receive that money. Sometimes the party who loses at trial will pay you or do what they are required to do right away, but often they will not. If they fail to pay up, the law provides you with options for enforcing your judgment and attorneys can help you navigate these laws. This is typically known as the “collection process” and it can sometimes be more difficult than obtaining the judgment in the first place. If the judgment is entered against you, there are ways to protect yourself from the collection, including through bankruptcy proceedings.