Defending a Civil Suit
What To Do if Your Business Has Been Named in a LawsuitThe last thing you want to see is a summons and complaint delivered to your business telling you someone has filed a lawsuit against you. If you have never been through this before, you may be confused, angry, and completely unsure what to do next. There is no need to panic. Below is some basic information you need to know about defending a lawsuit. You can also read more about what to expect as a defendant in a civil suit, and frequently asked questions about civil lawsuits.
Understanding the Deadlines In Your SummonsThe summons and complaint you received most likely says you have twenty days to serve an answer. Once you hire an attorney, chances are very good you can get this deadline extended by agreement of the plaintiff. Nonetheless, the sooner you contact a lawyer the better. If you do not hire a lawyer and answer the summons and complaint, the court could enter a judgment against you. This is called a default judgment and could take away your right to raise any defenses you have to the plaintiff's complaint.
Understanding the Terms in the Summons and ComplaintA civil complaint will often include terms that are either unfamiliar to you or mean different things to lawyers than they may mean to you. Here is a quick guide:
What is a Civil Lawsuit? If the complaint was brought by a person or a company, it is a civil suit. The word "civil" means it is a lawsuit seeking either money damages or an injunction. An injunction is an order from the court telling to do something or stop doing something. What is a Civil Summons? The summons is the document issued by the court after the complaint is filed. The summons is the order from the court that you respond to the complaint. The plaintiff has to serve you with the summons and complaint pursuant to court rules. This is called service of process. Until you receive service of process you have no obligation to do anything. Service is usually made by a sheriff or constable. It can be alarming to have a sheriff walk into your business, but understand that all that means is they are formally delivering the summons and complaint. If someone tells you about the lawsuit, or even if the plaintiff emails you a copy of the summons and complaint, you have not yet been legally served. You should contact an attorney immediately, though. As soon as you receive service, the clock begins on your deadline to file a response. What is a Plaintiff? The term "plaintiff" simply refers to the person or business that brought the complaint. What is the Statement of Estimated Money Damages? In Massachusetts state court, the plaintiff is required to include this statement with the complaint. It is usually very much an estimate, and its main purpose is to help the court make sure that the case is in the appropriate forum. The Superior Court generally handles cases where the claim is for $25,000 or more. The state District Court generally handles cases for smaller amounts of money. This means little, if anything, about what your true potential exposure is. |
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Review Your Insurance Policies
You should first determine if you have insurance that may cover the claim that has been made against you. I you have coverage, you should notify your insurer as quickly as possible. Your insurance contract may have deadlines for notifying them of a claim. The longer you wait, the greater the risk that your coverage could be compromised.
Whether you are covered by insurance will depend on your policy and on the nature of the claims being asserted. In general, lawsuits based on negligence will be covered. Claims based on intentional conduct are generally not covered. There is specific coverage for employment law claims. This is called Employment Practices Liability Insurance ("EPLI"). If you have questions about your coverage, you should ask your insurance agent.
Whether you are covered by insurance will depend on your policy and on the nature of the claims being asserted. In general, lawsuits based on negligence will be covered. Claims based on intentional conduct are generally not covered. There is specific coverage for employment law claims. This is called Employment Practices Liability Insurance ("EPLI"). If you have questions about your coverage, you should ask your insurance agent.
Collect and Preserve Relevant Documents
There are many, many reasons to do this. The first is that you could be sanctioned by the court if you allow relevant documents to be lost or destroyed. The obligation to preserve documents arises as soon as you know there is a civil lawsuit. The second is that your attorney needs to fully understand what happened in order to present your defense. Relevant documents include correspondence with or about the plaintiff or the subject matter of the lawsuit, agreements and drafts of agreements with any of the parties, employment records in an employment lawsuit.
How to Respond to the Complaint
The most common response is an answer that is filed with the court. The answer is a simple legal document that admits or denies the facts claimed in the complaint and sets forth affirmative defenses. If you have counterclaims against the plaintiff, this is where your lawyer will set them out in this document as well.
Sometimes the complaint fails to allege the facts necessary to state a claim. There are also times when the plaintiff files a complaint outside of the statute of limitations. In that case, your lawyer will file a motion to dismiss instead of an answer.
Sometimes the complaint fails to allege the facts necessary to state a claim. There are also times when the plaintiff files a complaint outside of the statute of limitations. In that case, your lawyer will file a motion to dismiss instead of an answer.
How to Find the Right Attorney
If you have insurance coverage, your insurer will most likely choose a lawyer for you. If you do not, here are some pointers.
Subject Matter Expertise. Just like you wouldn't want your primary care physician performing heart surgery, you want a lawyer who understands the area of law that is involved. If you are sued for breach of contract, you should be looking for an attorney with business litigation experience. If you are sued by an employee or former employee, you should be looking for an attorney with employment law experience.
Litigation Experience. Inside of each substantive area of the law (i.e., contracts, employment, trade secrets, unfair competition), there are lawyers who specialize in doing work outside of litigation, like drafting agreements and employment policies or negotiating with vendors, and lawyers who specialize in litigation. These are different skill sets, and the attorney you need should have substantial experience in litigation.
Cost and Value Considerations. There is no getting around the fact that, unless you are covered by insurance, defending a civil lawsuit will cost you money, One of the first things your lawyer should do with you is to help you understand how much you might be liable for if you lost the lawsuit, estimate the costs of various stages of the litigation, and discuss the pros and cons of trying to settle the case in the early stages. No attorney has a crystal ball, and at the beginning there are a lot of unknowns, but you should look for a lawyer who seems willing to have these conversations from the very beginning.
Subject Matter Expertise. Just like you wouldn't want your primary care physician performing heart surgery, you want a lawyer who understands the area of law that is involved. If you are sued for breach of contract, you should be looking for an attorney with business litigation experience. If you are sued by an employee or former employee, you should be looking for an attorney with employment law experience.
Litigation Experience. Inside of each substantive area of the law (i.e., contracts, employment, trade secrets, unfair competition), there are lawyers who specialize in doing work outside of litigation, like drafting agreements and employment policies or negotiating with vendors, and lawyers who specialize in litigation. These are different skill sets, and the attorney you need should have substantial experience in litigation.
Cost and Value Considerations. There is no getting around the fact that, unless you are covered by insurance, defending a civil lawsuit will cost you money, One of the first things your lawyer should do with you is to help you understand how much you might be liable for if you lost the lawsuit, estimate the costs of various stages of the litigation, and discuss the pros and cons of trying to settle the case in the early stages. No attorney has a crystal ball, and at the beginning there are a lot of unknowns, but you should look for a lawyer who seems willing to have these conversations from the very beginning.
How We Can Help
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We have years of experience representing individuals and small businesses in litigation involving business and employment disputes in Massachusetts state and federal courts. If the subject matter of your lawsuit is within our areas of expertise, we can work with you to assess your risk, evaluate your defenses and any counterclaims you may have, and create and implement the strategy that is right for you. If the lawsuit is about something we do not have experience with, we can provide you a referral to someone with the correct expertise.
You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
