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Mahe Law, Ltd.
Posted on January 9, 2015 by J. Mahe
Obviously being sued, regardless of the circumstances, causes individuals to experience a variety of emotions including fear, anger and sometimes even remorse. Often people have one of two responses, both of which should be avoided. First, some people are inclined to ignore the lawsuit. Ignoring the lawsuit will not make it go away, it will simply ensure that the opposing party wins by default, similar to forfeiting in sports. The second response is to immediately call the opposing party or attorney. An immediate phone call based upon anger or remorse may result in statements or promises made in the heat of the moment which you might later regret or which could harm your ability to adequately defend yourself. Accordingly, though you need to respond it is important to take some time, ideally no more than a week, to determine the course of action you will take.
Now that you have decided to address the litigation and have avoided the immediate reflex of contacting opposing counsel you undoubtedly have numerous questions. Should I get an attorney and can I afford an attorney? What do I need to do next? Can I win? How long will litigation take?
Your first step should be to contact an attorney, ideally one with experience in civil litigation and, if possible, experience in litigation similar to the litigation in which you are involved. Contacting an attorney, whether you later decide to retain them or not, will allow you to get a better understanding of the legal claims alleged against you and the defenses associated with such claims. Though you undoubtedly know the facts and circumstances associated with the litigation and the other party much better than any attorney you contact, an attorney will be able to assist you in understanding and applying your facts and circumstances to the legal claims alleged against you and the elements which the opposing party will need to establish in order to succeed. This knowledge will help you greatly in understanding how you want to proceed and the likelihood of successfully defending yourself.
If you choose to retain an attorney your next steps will be determined between you and your counsel. However, if you decide not to retain an attorney you need to be extremely cognizant of the time within which you must answer or otherwise defend yourself. If you review the documents served upon you, you will notice a time limit before which you must respond. If you fail to respond, the opposing party can request the court enter your default and award judgment against you and in favor of the opposing party. Once your default is entered there are steps which can be taken to allow you to defend yourself, however such steps can be complicated and require the filing of a motion with the court. It is much better to simply ensure that you take the necessary action before the court imposed deadline.
Your initial response must be served upon the opposing party or their counsel and must be filed with the court. This initial response indicates that you are defending yourself. Though there are a variety of initial motions which you may be entitled to make in defending yourself, without legal assistance such motions are likely overly complicated and your best option may be to file an answer. Your answer will indicate whether you admit or deny each of the allegations against you and any affirmative defenses that you have to the complaint.
Once you have filed your answer, the remaining litigation process will likely involve discovery, including depositions and requests for production, settlement conferences and, if necessary, a trial. This process is lengthy and can take at least six months, if not, several years. The entirety of this process will be complicated and you will need to ensure that you are well acquainted with the rules of civil procedure in whichever jurisdiction you are located. Nonetheless, by filing an answer you have ensured that you will be permitted to participate in the process and have the opportunity to defend yourself as well as ensuring that the court and opposing party must include you by providing you with notice if they take certain actions.
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