Stay cool, calm and collected. Litigation can be a long and stressful process that often becomes highly emotional. One of the biggest mistakes you can make, though, is to overreact to a lawsuit. While you should certainly be diligent with your response, you should not allow the lawsuit to consume all of your attention. You will likely be faced with tough decisions at some point during litigation, and you will be better served to make those decisions with a calm and clear mind. Ultimately, the best thing you can do to ease the burden of litigating a lawsuit is to take the correct actions early in the process.

Responding to a Lawsuit

Litigation Process

Responding to a Lawsuit

Getting served with a lawsuit is not a pleasant feeling. Your initial reaction will likely be some combination of anxiety and anger. Understanding the litigation process and the appropriate steps to respond to a lawsuit though can not only reduce the stress of the situation but also lead to a much more favorable outcome.

Consult Attorney

The first step in responding to a lawsuit should almost always be to contact an attorney. The actions discussed below are typical steps that should be taken to prepare for litigation, but each case presents unique issues. You should consult an attorney immediately after you have been served with a lawsuit. Your attorney can help you make sense of the specific claim(s) made against you and the best course of action for your case. You also have a limited amount of time to respond to a lawsuit. If you fail to provide a timely response, then the plaintiff will be awarded a default judgment (i.e. the plaintiff will win the case). By promptly consulting an attorney you can develop a defense and respond to the lawsuit in an effective and timely manner.

Preserve Relevant Documents

Litigants have a general duty to preserve relevant evidence, failure to do so may be grounds for criminal liability or damaging sanctions. This duty arises once a party knows or should know litigation is likely, which means that it can arise even before a lawsuit has been filed. Importantly, under both Arkansas law and federal law, the courts may issue sanctions against a party where relevant documents are destroyed. For instance, the court may issue an adverse inference instruction to the jury that would allow a jury to assume that the contents of the destroyed documents would be unfavorable to your case.

It is crucial, then, that you take the necessary steps to ensure the retention of all relevant documents, recordings, or other information. Businesses should contact and inform anyone within the company who has access to relevant information of their obligation to preserve evidence. In today’s digital world, you should also reach out to the appropriate persons to ensure that no relevant electronically stored information is improperly deleted. For example, many companies regularly delete e-mails from their servers. In that case, you should contact IT to protect relevant e-mails from the routine deletion process.

Inform Insurance Provider

A variety of insurance policies may cover the lawsuit filed against you. Many lawsuits against a business will be covered under its general liability, professional liability, employment practices liability or other similar insurance policies. Even if you do not think you have an insurance policy that covers the lawsuit, you should still notify your broker as soon as possible because most insurers require prompt notification of the lawsuit. If the lawsuit is covered by your policy, then it will likely cover the court costs, attorney’s fees, and any judgment or settlement obligations.

Investigate and Assess Risk

After you have discussed the lawsuit with an attorney, you should have a good understanding of the claims made against you. At that point, you need to conduct a thorough investigation into the allegations made by the plaintiff. Keep in mind that anything you say regarding the lawsuit can generally be used against you unless it is protected by some sort of privilege. The best approach is to avoid any direct communications with the plaintiff and to have an attorney involved in the investigation as early as possible. Communications with your attorney are generally protected by the attorney-client privilege, and your attorney typically cannot serve as a witness against you. If the plaintiff is someone that you must directly communicate with (e.g. a current employee), then you should make it clear that you will not discuss the lawsuit. Businesses should take steps to ensure that all relevant managers and supervisors also understand they are not to discuss the lawsuit with the plaintiff.

Once you have completed an investigation, you can properly assess your risk. Be aware that your risk may extend beyond this one lawsuit. Your risk exposure increases where a pattern or practice is discovered that could give rise to copycat actions or class actions. To the extent your attorney is not involved in the investigation, you should still disclose all relevant facts you have discovered. Covering up any bad facts from your attorney will not benefit your case. Those facts are still likely going to come at some point, and you want your attorney to be prepared to respond.

 

Litigation Process

Filing a Complaint

Litigation officially begins with the filing of a Complaint. The Complaint is the initial pleading filed in a lawsuit and puts opposing parties on notice of the plaintiff’s claims. To be a valid Complaint, it must state the name of the parties, the nature and basis of the claim, and the nature and amount of relief sought. The plaintiff does not have to include detailed factual allegations, but must allege sufficient facts to legally establish a claim and provide defendants with fair notice of the claim. The Complaint must also contain a statement in ordinary and concise language of the facts that establish that the filing court has jurisdiction over the claim and is the proper venue for the case. In Arkansas courts, the Complaint generally must be served on the defendant within 120 days after it has been filed. In federal court, the plaintiff only has 90 days to serve the defendant with the Complaint.

Response to Complaint

Arkansas courts generally require the defendant to file a response with the court within 30 days after being served with the Complaint; in federal court, the defendant has 21 days to respond. The defendant may respond to a Complaint with either an answer or a pre-answer motion. An answer states the reasons for the court to deny the plaintiff’s claim and assert any affirmative defenses that the defendant may have. In an answer, the defendant should either admit or deny the allegations contained in the Complaint. Facts not denied may be deemed admitted by the court.

Instead of an answer, the defendant may file a motion to dismiss the case. A court will grant a motion to dismiss where the facts alleged in the Complaint are insufficient as a matter of law to establish the plaintiff’s claim. In considering the motion, the court looks only to the contents of the Answer and cannot consider extrinsic evidence. Importantly, some defenses are waived if the defendant does not raise them in his first responsive pleading to the Complaint, whether it be an answer or a motion. These defenses include lack of personal jurisdiction and insufficient service of process.

Discovery

During the discovery process, the parties investigate and obtain evidence for the case. Discovery is generally divided into two categories: oral and written. Typically, the parties will engage in written discovery through interrogatories, requests for production of documents, and requests for admissions. These discovery tools are each unique, but essentially all three make requests on another party to supply certain information. The parties may also issue subpoenas to secure information from non-parties. The primary source of oral discovery are depositions. A deposition allows the parties to take sworn testimony from witnesses and parties outside of court.

Discovery will be unique to each case. It can be short and simple or long and complicated. Where a party refuses to properly engage in discovery, such as a refusal to respond to proper requests for information, the opposing party may ask the court for relief. However, disputes regarding the production of information can significantly delay the process.

Pre-Trial/Summary Judgment

Before trial, a party may move for summary judgment. A court must grant a summary judgment motion where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter law. In other words, the undisputed facts legally require judgment in the moving party’s favor. Unlike a motion to dismiss a case, the court may look beyond the pleadings in making a determination. As such, a motion for summary judgment is usually brought after some discovery has been completed. In federal court, the motion generally must be brought within 30 days of the close of discovery. In Arkansas, the parties must wait 20 days after the commencement of the case to bring a motion for summary judgment but must bring the motion no later than 45 before a scheduled trial date.

During this time between the start of discovery and the trial date, the parties also typically engage in settlement negotiations. In some instances, this includes formal proposal and/or mediation. In other cases, the process can occur through more informal discussions between the parties and their attorneys.

 Trial

If the case is not resolved through a settlement or pre-trial motion, then it will proceed to trial. The purpose of the trial is to resolve the material factual disputes. The trial may have either a judge or jury as the ultimate fact finder. Note that while the jury may ultimately make the decisions of fact, the judge always makes the decisions of law (e.g. the judge decides what evidence should be admitted, but the jury weighs the value of the evidence). During the trial, each party will formally make his case to the court through the presentation of witnesses and evidence. Each party typically also has the opportunity to make opening and closing arguments; although, in more simplistic cases, the court is likely to limit the opportunity for these statements. After the trial, the factfinder makes a final determination on the issues and the court will enter a judgment accordingly.

Appeal

A losing party usually has the right to appeal a final judgment to a higher court. In both federal and Arkansas state court, a notice of appeal must be filed within 30 days after the entry of the judgment. The appeals process is not a re-litigation of the case. The court generally limits its consideration to a review of the record (i.e. no new discovery or evidence). The parties submit briefs to the court explaining their argument, and the court may have each party make their argument at a hearing. The court may uphold the decision, reverse it in part or entirely, or remand the case back to the lower court for reconsider.

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