PART 1: Greetings – You Have Been Sued
You’ve been operating a business successfully for years, and one day a constable knocks at your door,and serves you with a lawsuit. He hands you a stack of papers, including at least a citation and a petition. After your heartbeat returns to normal, you call your favorite lawyer. These articles will give an overview of how a lawsuit proceeds.
Every lawsuit starts with a conflict – a car accident, a broken lease, a failed business, an unhappy marriage. At some point the parties decide that the only way to make it right again is to ask the court for help, and they see a lawyer. It is the lawyer’s job to decide whether the conflict has a legal basis for a suit, and who the responsible parties may be. Ideally, investigation before suit is filed will have identified the correct parties by name and address, so that they can be brought into the case. The case is started by filing a petition.
The petition identifies the parties to the suit – the Plaintiff is the one who filed suit, and the Defendant is the person who is sued. There can be more than one plaintiff, and more than one defendant. The petition also describes the background facts, and “causes of action” – that is, the legal grounds for the suit, and will usually also specify what the plaintiff wants – such as money damages, an injunction, or a declaration from the courts about the rights and obligations of the parties. The petition may have documents or affidavits attached, in support of the allegations made in the petition.
Before the court can enter a judgment against you, you must be notified. The citation, along with a copy of the petition, is your notice. In most cases, the citation is personally served by a constable or private investigator, but other forms of service can be used if someone is avoiding the process server. The citation informs you that you have been sued, the case number and court, and when your answer is due to be filed with the court. The process server signs a copy of the citation and returns it to the court with a notation of the date you actually received the papers.
Filing an Answer
For cases filed in County or District Court, an answer to the suit must be filed no later than the next Monday after 20 days after service. So, if you were served on June 1, your answer may be due as soon as June 21. If June 21 falls on a weekend or legal holiday, your answer is due on the following Monday that is not a holiday. If June 21 is a Monday, your answer is due on June 28, Monday days after you are served. If you do not file an answer to the suit, the court can take the allegations of the petition as true, and enter a judgment against you.
In preparing an answer to the suit, your lawyer will want to discuss the background facts with you, to determine what types of defenses need to be included in the answer. In some cases, it may be necessary to object to the court’s jurisdiction before filing an answer – for example if the suit has not been filed in a proper county, or if service of the citation was defective. For some types of defense , an affidavit must be attached to the answer.
You may also want to consider filing a counterclaim – that is, a petition in the same suit against the plaintiff, or bringing in a third party who may be responsible for what happened. Depending on the circumstances, bringing in more people may increase your chance of reaching a settlement, getting a judgment against a person with the money to pay it, or getting out of the suit without any liability. However, it is also likely to increase the time necessary to prepare the case for trial, and the overall cost of the litigation. This is in part due to more lawyers mean more scheduling conflicts, and because each party has rights to investigate the facts, question witnesses, and receive copies of documents. The benefits and risks must be weighed in each case.