Have You Been Sued? Our Suggestions
A lawsuit against you would be in the form of a legal document naming you as the Defendant (the one being sued), by the Plaintiff (the person or the company who is pressing a claim against you). In the case of Small Claims lawsuits, those generally not exceeding $5,000, and explained in a separate module elsewhere in this site, the summons, or complaint, is usually sent to you by certified mail for which you sign. In larger lawsuits, it must be served by an officer of the court, either a sheriff or constable, or even a process server working for an independent company. It will outline the amount or action being claimed against you, and the reasons.
The most important thing for you at this point is NOT TO IGNORE what you have received. It will not go away. You must take the action recommended below. If you ignore what you have received, your Plaintiff will go to court and obtain a default judgment against you for the amount claimed, whether they are right or wrong. That alone will completely ruin your personal credit, although the credit reporting agencies will usually not pickup Small Claims judgments.
Justizz is aware of many people who ignore summonses, and find money removed from their bank accounts or have their paycheck suddenly garnished. The procedure may seem harsh, but if you were on the other side, you would expect your defendant to show up, and you would want to be paid. When this happens, your Plaintiff will appear again to get what is called a Default Judgment, which the Judge will grant due to your absence. Your Plaintiff can then use that Default Judgment to remove money from your bank account (in today’s internet economy, the Plaintiff or his collection agent can find out where your account or employer is easily enough), or send an order to your employer to reduce your paycheck weekly until the debt is satisfied.
You may try to evade service of the summons by ignoring a certified mail notice, or not opening the door for the serving agent, but eventually a judge will know what you are up to and set a trial date anyway for you to appear. These notices are sent by regular mail, so do not ignore those either.
You Must Now Defend Yourself and Answer the Claim Against You
If your summons/complaint is a Small Claims lawsuit (usually $5,000 or less), you can defend yourself and it is recommended that you do so. You do not need a lawyer. The Small Claims courts are established for the “common guy” to answer a claim against him informally. The judges are fair and usually give the benefit of doubt to the “common guy” when pursued by a large organization or corporate entity, so do not be afraid. Mark down the appearance date and time in your calendar. (Justizz recommends everyone have a month at a glance calendar, and not leave important dates to memory.) If you do not feel you owe anything, you should analyze the complaint and bring whatever documents you have to support your reasoning for not owing what is claimed. If you have a witness, someone who has seen the facts or evidence, arrange to bring that person along with you. Credible witnesses help a lot.
If the complaint cites a contract or facts with which you are unfamiliar, immediately send a certified (not regular mail) letter to the Plaintiff demanding a copy to be sent to you at least 2 weeks prior to your appearance date. Keep a copy of it with the certified mail receipt (you can go on line and print out a memo of the delivery of the letter; this is recommended as it will show the Plaintiff got your demand letter). If you get a reply, rehearse the defense you will present to the judge. If you do not get a reply, bring that letter and proof of delivery to the court. The judge will not be happy and may dismiss the case, or postpone it, if you do not get a reply. He may order the Plaintiff to provide you with what you need, and set a new trial date.
A Word About Judges
In the event that you receive this summons, and you do owe some or all of the amount, then face the debt and pay it. Part of being a good citizen and reputable person is seeing to your responsibilities. Call the Plaintiff and talk frankly. He usually wants to go to court less than you do, especially because a corporation (if in the case it is not another individual suing you) has to hire a lawyer to go for them, and that costs money. (Corporations cannot represent themselves in a legal matter.) If you owe something but less than what is claimed, try to negotiate a settlement amount. If you are not comfortable doing this, get a friend or relative to do so for you. And if you do not have the full amount to pay, then ask to make, say, 6 equal monthly payments. If the Plaintiff agrees to that, they will send you a form of settlement to sign, which you will return with your first check, or only one check if paying in full. The Justizz module Free Legal Forms has a generic settlement agreement you can print out and fill in if convenient. Remember to make all payments as promised (memo them in your calendar, as recommended above).
Most judges are fair and honest, and give extra consideration to the little guy. A handful are not, either being prejudiced, preferring a particular lawyer, or just plain stupid. Always be polite and treat any judge with respect. Do not ever argue with a judge, but make your point confidently. If you do get an unfavorable decision, accept that you were either wrong, or that you have been treated unfairly. Our great justice system has an elaborate appeals system, and if you feel strongly enough about the incorrectness of your decision, consider an appeal. They do require some work, so be prepared if you should do so.
One of the most common occurrences is for a collection agency to sue you. In most cases, these agencies receive a long list of debts owed from a large company. They are not given any of the documentation, such as agreement you may have signed. They process Small Claims lawsuits by the hundreds, hoping that people like yourself will not respond, so they can get their default collection amount. If you receive a summons/complaint from such a firm, immediately demand full documentation by certified mail (always use certified mail). If they do not have anything (most of the time), it is possible they will drop the case, and you will show up but they won’t, and the case will be dismissed. The Justizz website has a module called Stop Debt Collection Abuse. Use that form, and follow the certified mail procedure outlined above.
The best way to avoid any and all claims is to make every effort to pay obligations. If in financial difficulty, do not ignore an obligation, Instead make a call, explain your situation, ask for more time, and meet whatever commitment you agree to. Most legitimate creditors do not want to be involved in court actions--by your calling first and facing an obligation, you will find almost everyone to be very cooperative. Also, avoid dealing with, if you can at all sense it in advance, any person or company that is not reliable or does not give you a secure feeling. It is those relationships which most often wind up in dispute.
If You Are Sued In A Higher Court
If a claim is above the threshold of a Small Claims Court, it is usually filed in a superior court, called, depending on your state, Superior or District Court. Or it can be filed, if the amount claimed exceeds $75,000, in a Federal Court. Unless you are very brave or competent, you should have legal assistance. These higher courts have very strict procedures and rules, which are very hard to follow. You can respond in two ways.
First, you can represent yourself, and this is called pro-se representation. Pro-se has become much more common as legal fees have soared. You can save a bundle in legal fees. If you do this, the court clerks will provide assistance and advice, but if you ask them for a legal opinion they will refuse to help you, as they are required to do. Justizz recommends in this instance to find a paralegal to help and guide you. These are the well-trained legal professionals who are not licensed to practice law, but can prepare all of the papers required in a lawsuit. One of the great injustices in our legal system setup is that lawyers charge $400 and up an hour, at least in the big cities, for work mostly prepared by very competent $25-30 an hour paralegals. With a good set of papers and procedural advice from a paralegal, you can make the appearances required yourself, and the judge will be comfortable that you have not submitted “home-made” paperwork. If at all possible, and the case against you is not too complicated, try it this way.
Second, if you choose to have an attorney represent you, do so. The problem is choosing a competent attorney who will not, frankly, rip you off. Many attorneys are greedy and view you as a potential source of funds, caring less whether you win or lose, since they get paid anyway. The attorney selection process is not easy. Justizz provides a selection of attorneys, constantly being assembled and updated, who will handle your case at a reasonable set hourly rate, in the Find a Reliable Attorney module on the main page of this site. These attorneys are relying on your feedback of their work to get more business, so they have every reason to treat you fairly, as opposed to someone you find online, who may well try to exaggerate the scope of the work you need to increase his income, and if you are dissatisfied, never see you again and remains unaffected by whether you were pleased or not. You can also reply on recommendations by friends or relatives who have been treated well and fairly by an attorney. Justizz finds that most small town attorneys are fair and decent, having a local reputation to protect. Beware of the big cities, like New York City, where the pace is furious and so is the greed of attorneys. A recent Wall Street Journal article said that lawsuits of this type were filed by 5 times more Americans 25 years ago as today. Fewer lawsuits--people are being more careful, and they are using arbitration and other simpler means to settle disputes. This shortage of work results in many law firms charging much more for the same work as before to keep their income up. Disgusting!
At the launch time of this site, the Find a Reliable Attorney module is not ready for launch. It is very complicated and is taking a lot of time and effort to finalize. Please be patient.
Good luck with defending your summons/complaint.