By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group, PLLC
There you are simply minding your own business when a stranger approaches you, hands you a document and utters those shameful words, “You’ve just been served.” Your rather polite response comes natural, “Thank you.” If, on the other hand, you flew off the deep end and cursed the process server while chasing him down in your vehicle while hurling the papers back in his face, don’t call our Civil Litigation team (you aren’t the client we want to help quite frankly); instead, call our Criminal Defense team at THE GASPER LAW GROUP.
You next flip through the Civil Case Cover Sheet and Summons as if you have seen it before or already know what it says. You get to the good part, the Complaint and Jury Demand. As you read further, you learn who is suing you and suffer through a one-sided retelling of the facts you thought were long resolved. As you read further, you discover several claims for relief and may recognize some of them (e.g. breach of contract, negligence). You also find some that don’t make sense whatsoever (e.g. breach of good faith and fair dealing, breach of fiduciary dury, demand for accounting, quantum meruit, unjust enrichment).
If you are not enraged yet, you will be … at the end of the Complaint, you discover that the plaintiff is asking for judgment to enter against you together with attorneys fees, costs and interest at the maximum rate allowable by law! More distressing is the fact that the plaintiff doesn’t even tell you how much money they want from you! How can this be? They sue you, have the audacity to have you personally served and they can’t even give you a dollar figure of what they want? As it turns out, they aren’t allowed to; the Colorado Rules of Civil Procedure do not permit a plaintiff to include a dollar amount in the “prayer for relief” (i.e. the section of the Complaint in which the plaintiff summarizes what they want in terms of damages, fees, costs and interest)
The first rule of civil litigation is not to panic. As a close friend and colleague of mine stated recently, frustration and anger begin where knowledge and experience ends. You may be frustrated, enraged and stressed after being sued, and that’s okay. But recognize these symptoms and reaction for what they are. They are signals to surround yourself with those who possess the knowlege and experience to handle a civil law suit and keep you out of harms way.
The second rule of civil litigation is don’t ignore a lawsuit. In most cases, the Summons contains deadlines in which to file an Answer and some courts even require that a plaintiff provide the defendant with a blank form to file an Answer.
The third rule of civil litigation is don’t do anything until you talk to an attorney. Even if you don’t hire one, it is still great advice to learn as much as you can before committing yourself to a particular position in your case. Did you know that you don’t have to file an Answer first? It may be important to file another responsive pleading such as a motion to dismiss or a motion to object to personal jurisdiction (can this court even issue orders against you) or to object to subject matter jurisdiction (can this court even hear this type of case). If you file an Answer – you know, the one the Plaintiff was nice enough to provide for you – you may actually waive your right to challenge personal jurisdiction.
The fourth rule of civil litigation (and we won’t discuss all 100 rules in this blog article) is to find the right lawyer who will properly analyze your case and put the requisite time into learning the factual background and legal principles involved in your case.
An effective attorney familiar with civil litigation and civil disputes will certainly be able to explain, in lay terms, what the plaintiff is actually seeking. Now, there are some lawyers who will try to tell you that they know how the case will end and will suggest that you settle the case immediately for some value the attorney thinks is reasonable. This is a silly strategy. As a recent illustration, we recenty saw a case where a client came from another lawyer’s office for a “second opinion” on the value of the case to compare with the other lawyer’s on-the-spot evaluation. We told the client that we had absolutely no idea what the settlement value of the case looks like. Puzzled, the client explained that the other attorney could offer almost an exact amount. We explained, nicely of course, that we could, in fact, tell the client a number if it made the client feel better but that we weren’t in the business of telling folks what they want to hear; we are in the business of giving solid legal advice based on the facts and circumstances of the case. Any number we would have offered would have been pure speculation and would ignore critcal information that would be disclosed or discovered throughout the case.
It turns out that the settlement value of a case has little to do with what one attorney thinks is a good value; it has so much more to do with the motivations and position of the plaintiff and what may be learned (good and bad) in the earlier stages of the case. In this case, the first lawyer offered an amount of $50,000 to settle a case and reasoned that this amount would actually be cheaper than the cost of defending the case at trial. While true, it ignored a larger issue. It turns out that the plaintiff was a good friend of the defendant and was being pressured by parents and friends to sue the client to recover money damages. Knowing that (because we asked the questions and listened to the full background), we were able to conduct an early settlement conference (without the parents and friends) to focus on what the lawsuit would do to the friendship between the plainitff and the client. In the end, the case settled for a much more reasonable amount and the parties were able to leave the settlement conference knowing that the money issue was behind them; they moved on with life and preserved a relationship that would have, nearly guaranteed, been destroyed in the litigation process. The first lawyer was absolutely right, $50,000 was probably less than taking the case to trial. Nevertheless, experienced lawyers learn not only about the facts of the case but will also explore the dynamics and personal relationships behind a case to encourage a more reasonable settlement or, if settlement cannot be achieved, to better prepare the case for trial.
Much of an attorney’s job involves uncovering facts and then determining how to present those facts in a favorable light. Finding an attorney that will do this instead of focusing on an off-the-cuff case valuation can be challenging. We invite you to contact The Gasper Law Group, PLLC to learn more about our law firm and to determine if we are the attorney best suited for you, your case and your goals. The Gasper Law Group offers free initial consultations and is committed to Helping People First!
So, what should you do after being sued?
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