What To Do If You Get Sued

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Business litigator defending small business in civil proceedings. Breach of contract lawsuits. Handling the defense of businesses and individuals sued in civil proceedings. litigation involving monetary and punitive damages.

 

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USE NOTE

This article, and the others listed above, are originals written by Rolando Pasquali. Many were published in legal journals and in newspapers of general circulation. Each article is based upon general principles of California Law in existence at the time that it was written. The law constantly changes. Therefore the articles, including this one, may contain information which is out of date. Also, even a small difference in facts can change how the law applies to any situation. No information in this article or anywhere on this website constitutes legal advice. These articles do not create an attorney-client relationship between you and this office. If you need legal advice, contact this office or an attorney in your area

All rights are reserved.

 

 

 

 

 

 

Defending Lawsuits and Responding to Litigation

 
-by Rolando Pasquali

My process server's name is Eric. He’s a pretty non-descript sort of fellow, except that he smiles a lot. He looks as natural wearing a baseball cap as he did when we first met. Back then, he wore a badge. When I need to serve legal papers on someone, Eric’s the first guy I call.

          Even if they’re expecting it, most people never think it’s him. Eric will just kind of sashay up, smiling and acting as if he’s looking for the rest room or something. One guy recently tried to tell Eric that he “wasn’t interested” in those papers from Attorney Pasquali; and “who are you anyway,” he demanded! Eric smiled. Having already confirmed the man’s identity, and with the canary now firmly in his mouth, Eric wasn’t about to choke on the feathers. “I’m the Tooth Fairy.”

          Like hundreds of people every day, that businessman was suddenly staring at a summons and complaint with his name at the top. What he did next would have a profound impact on that business owner’s financial future.

Strict Time Limits

          The summons will tell you who is suing you, which court you are being sued in, and how much time you have to respond. Typically, in a business or injury dispute in state court, you’ll have 30 days from the day that the papers are handed you to respond. Some types of cases give you less time, so read the summons carefully. It’s written in both English and Spanish. You need to react to it, fast. Never, ever, wait until the last minute to get to a lawyer. A lawsuit is the legal version of sudden injury. Instead of your heart, bones, or central nervous system, it’s your pocketbook that needs emergency treatment. Buying a do-it-yourself book now is akin to treating chest pain with cough drops. Don’t do it.

Different Forms of Response

          One of the reasons your lawyer needs to look at your summons and complaint before the eleventh hour is that the law allows different forms of response. Sometimes, you may not have been properly served (an example would be a summons/complaint stuffed under your door with nothing more being done). An attorney can “specially” appear on your behalf and ask the court to “Quash” improper service. If successful, the court would treat the papers as not having been served on you in the first place. Next, the response might not be to “deny” the complaint, as is legally done when someone answers.

          I’m often asked at parties if “someone can sue you over that.” My answer is that anyone can sue anyone else over anything. I can sue God because the sun didn’t shine, but so what! The true question isn’t “whether they can sue,” but instead, “whether they can win.” I’ve seen lawsuits that amounted to nothing more than silliness. Given sufficient time, a skilled attorney can file a demurrer with the court instead of an “answer.” A demurrer tests the legal sufficiency of the complaint. It asks the court to assume that everything stated in the complaint is true, and then demonstrates that the complaint doesn’t state a valid cause of action under our laws. If the court sustains a demurrer, it will usually give the plaintiff a chance to re-write the complaint and “cure” the legal defect. However, the court won’t be so generous if the 2nd or 3rd attempts still fail to “state a valid cause of action.” Obviously, a demurrer involves a careful analysis of the complaint. This becomes difficult if the legal paperwork is turned over to the attorney at the last minute.

Do You Have Insurance ?

          If you had insurance at the time that you engaged in the conduct alleged in the complaint, you may be entitled to an attorney at no cost to you. Everyone thinks of “automobile insurance” but many people overlook their homeowners policy. Businesses should look to their CGL Comprehensive General Liability policy. Most of these policies, including CGL, homeowners and renters policies cover far more "risks" than people think. While this will depend upon the nature of the "loss," the type of claim presented, and the wording of your policy, the vast majority of accidents, unless specifically excluded, are in fact covered. Typical exclusions under homeowners will be driving a car (because they want you to buy their auto insurance) or operating a business (they sell business insurance too).

          If some door to door salesman claims he was injured by some act of your negligence, there’s a good chance that your insurance carrier will hire a lawyer to defend you at their expense. An example, now that summer is upon us, are sports related accidents. If you accidentally hurt someone in the park, and break their leg, don’t be surprised if they sue you. Your homeowners insurance will usually cover this. It depends, of course, on the specific language of your policy.

What You Should Do

          If you think you might have insurance applicable to your case, call the broker who sold it to you. Virtually all policies of insurance require that prompt notification of a claim be given to the carrier. Don’t let the agent try to talk you out of “making a claim.” The argument that your rates may go up is founded as much on personal interest as it is on friendly advise. Insurance companies judge agencies by their profitability. Increased claims at an office often reflect on the agency that placed the policy. From your point of view, if the case turns out to be “bigger” than you’d originally imagined, and you didn’t report it; you may find yourself being denied coverage based on your having breached the notification provisions in the policy. It’s a bad gamble, no matter how you look at it.

          If you didn’t have insurance, get your checkbook ready. You’re going to need to hire a lawyer. And, like anything else, good ones don’t come cheap.

 

 

 

 

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