You’ve Been Sued, Now What?

They are three words you never want to hear: “You’ve been sued” (Or the variation: “You’ve been served”).

But as the saying goes, it’s better to prepare for the worst and hope for the best.

This article walks through the anatomy of a lawsuit from the perspective of a defendant. Not only will this help you plan for the worst, but you’ll hopefully see it’s not that bad after all.

1. What is service?

The first stage of a lawsuit is the pleading stage, when parties file their claims with the court to initiate the lawsuit. To initiate a lawsuit, a plaintiff is required to serve the defendant with a copy of the complaint and the summons that has been filed. The complaint, as its name suggests, lays out the other party’s legal claims, the facts supporting their claims, and the relief they are seeking. The summons simply demands that you appear before the court.

2. How does Service work?

There are specific requirements for properly serving a defendant and several methods by which a defendant can be served. In order to properly serve court documents, a process server who is not party to the case and who is 18 years old or older must serve the paperwork on the other side. See Cal. Civ. Code § 414.10. The most reliable form of service is personal service – this means a process server hands the complaint and the summons directly to you. Cal. Civ. Code § 415.10. Handing the documents to your spouse or your receptionist does not qualify as proper service, unless the process server has attempted to personally serve the documents on you multiple times and has failed to do so.

If a process server has tried to locate you to serve you multiple days of the week at different times of the day when you are likely to be at the given location, the server can then leave the papers with either someone who lives at your residence who is 18 or older or someone at your office who appears to be in charge and is 18 and older; this is known as substituted service. Cal. Civ. Code § 415.20. The process server then must also mail the documents to you at that address. Id. While there are other types of service, such as service by mail and service by publication, personal and substituted service are the two most common forms of service of process.

3. Channel your anger constructively

Once you have been served, your initial reaction will be panic. What will happen to me? What will happen to my business? You will also experience anger. The complaint will make you mad. There will likely be claims that you did things that you did not do.

Don’t fall for their trap! Take this as an opportunity to channel your anger constructively. This is where you can help your case and save attorney’s fees. Highlight the things that are not true. Write out a timeline of events from your perspective and have this handy when you start talking to lawyers about your case.

4. Don’t wait to hire a lawyer

Most importantly, you should not ignore the lawsuit and hope it goes away – this is a quick way to have a court enter a default judgment against you. It is important to talk to a lawyer as soon as possible, so that you do not risk missing your deadline to file a response.

In California state court, you have 30 days to file a written response with the court, called an answer, and serve it on the plaintiff. Cal. Civ. Code § 412.20(a)(3). If you are in federal court, you have only 21 days to file a response. F.R.C.P. 12(a)(1)(A)(i).

If you also have legal claims against the other party, you may file a cross-complaint, detailing your legal claims, the factual basis for those claims, and the relief requested. Instead of an answer, you can also challenge the complaint with a demurrer, motion to strike, or other motions. But remember, these responses (and related trial tactics) all take time to prepare, so start talking to a lawyer right away.

5. Gather Documents

Once you’ve hired a lawyer, assemble documents, emails and records related to the case for your lawyer. Organizing this information will save time and reduce legal costs. Do not, under any circumstances, delete or discard any information, however important or unimportant. And don’t lie to or hide any information from your attorney; they are there to help you and can only do that best with complete information.\

6. Go Quiet

Lastly, do not talk publicly about your lawsuit. Do not post on social media (even to mention you've been sued). Resist the urge! As much as saying something (such as badmouthing the other party) might feel good in the moment, it will only hurt you in the long run.