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
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.
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.
Responding to a Lawsuit
- Consult attorney
- Retain Documents
- Investigate and Assess risk
- Answer/Motion to dismiss
- Summary Judgment