Attorney, The Creekmore Law Firm PC

Public domain image courtesy of

Public domain image courtesy of

Being named in a lawsuit can be frightening. All of the thoughts that start streaming through your mind: What is going to happen? What do I do? How will I afford an attorney? How will I choose an attorney?

Regardless of what you do or do not know, once served with the complaint and summons, DO NOT ignore it. If you do not respond to the complaint on time, a default judgment likely will be entered against you. This may be something that cannot be undone.

Due to the procedures that must be followed and the complexities of understanding the substantive law, there is no substitute for an attorney who is familiar with the specifics of your case and can advise you accordingly. You are most likely to be successful if you retain an attorney who practices in the area of civil litigation and is not only familiar with the subject matter of the case but is also familiar with the court in which your case is pending.

Prior to retaining an attorney, however, the information below will help you get started.

1. Where is Your Case Pending?

You will see the name of the court in which your case is pending listed on the complaint and the summons. Some jurisdictions have a small claims court, which is not covered by this article. If this is not a small claims case or a case filed in a General District Court, read on.

2. Read the Complaint.

At some point, you will be served with process. This means that you will be provided with, among other documents, the complaint (plus any attached exhibits) and a summons telling you that you must respond to the complaint.

Once served, you need to READ THE COMPLAINT and the referenced exhibits. Be warned that not all complaints make sense for a variety of reasons. Do your best to make it through as this is the only way you will know what you are accused of doing or not doing.

3. Responding to the Complaint.

Plaintiffs will have filed the complaint in either a state Circuit Court or in a federal United States District Court. Unless particular circumstances exist, in both Circuit Court and federal court you have 21 days to respond to the complaint. Your response may include, among other responses an answer, a demurrer, a special plea, a motion to dismiss or a motion for judgment on the pleadings. You also may wish to include particular affirmative defenses, a counterclaim, a third party claim or a cross claim. Your attorney can help you ascertain what type of response is appropriate. Once you have been served with a complaint, it is important to seek legal counsel immediately so that your attorney can respond on your behalf in a timely manner.

4. Relax!!!

Now, count to ten, take a deep breath and relax. With a few exceptions, even if everything goes smoothly, a case can easily take a year before going to trial and in all reality will take two or even three years to get to that point. While there is a lot of time before trial, there also are a lot of procedures that need to take place before the trial — motions practice, discovery and settlement negotiations, just to name a few.

5. Gather and Save Your Documents and Other Items.

Once you know what the case is about, gather together all of the documents and other items that relate to the case and save them. These will include items such as letters, emails (turn off auto-delete), notes, contracts, your social media profile (if you modify it, make sure to maintain a copy of what you had). While you might wonder about saving documents that may not be great for your case, most items are almost impossible to completely erase and often times it is illegal for you to attempt to do so. It will only makes matters worse if someone ends up finding a copy or evidence of a document that the court later finds out that you attempted to hide.

6. Contact an Attorney.

You probably saw this coming!! While I am biased here, in most cases, litigants need legal representation in some form, whether to provide them with complete representation or just to provide a consultation. You can create a damaging situation early on if you are not familiar with what you are doing and it may end up being difficult or even impossible to undo the damage down the road. While you may be able to handle a lot of the case yourself, for most people, an attorney will not only save you the time and headache of trying to learn how to practice law, but it also is a way for someone who is not emotionally connected to the case to bring their years of real-world experience that you will not be able to pick up from a book or the internet.

7. Request More Time.

If you are working towards gathering the necessary information for your defense, have not yet retained an attorney and are running out of time to meet your deadline for responding, ask opposing counsel or the opposing party for more time to respond. Most deadlines can be moved by simply asking and it is very common to do so. Even if you can only get a week or two, that will give both you and your future attorney breathing room to plan, draft and file a response.

While working through the items above may sound daunting, your preparation will pay off once you actually retain an attorney. You now will be prepared to have an efficient, educated conversation with your attorney regarding your case, the evidence involved and the claims alleged against you. You and your attorney will be able to immediately start working on preparing a response and/or discussing the next step towards your defense.

If you are involved in a lawsuit and have questions regarding current or potential legal issues, we urge you to contact an attorney as soon as possible to obtain advice and guidance.

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