Being personally served with a summons and a complaint is stressful. Sometimes, it is hard to know what to do next. Analysis paralysis sets in. Maybe I can just ignore this? Could this be a problem for next week? The answer is no. Being served with a complaint is a problem for this week. For today, in fact.
Service of a summons and a complaint puts you on a clock. If the complaint is in California Superior Court, you have 30 days to respond to the complaint. If the complaint is in U.S. District Court (i.e., federal court), you have 21 days to respond to the complaint.
If you do not timely respond to the complaint, the other side wins by default. The legal system requires you to respond to the complaint. The punishment for not complying is that you lose by default. The court treats the complaint as true, and the plaintiff can easily get a judgment against you.
What does it mean to respond to a complaint? The simplest way to respond to a complaint is to file an answer. The answer responds to the allegations, typically by denying them. An answer is straightforward, but it does not dispose of the lawsuit. In fact, after serving your answer, the discovery process begins.
Your answer must raise all of the defenses that you intend to make in response to the lawsuit, typically called “affirmative defenses.” If you do not raise an affirmative defense in your answer, the court may later treat that defense as waived, and you will not be able to assert it in the future. So, it is important to get the answer right!
Are there other options? Other options include filing a motion to dismiss, a demurrer, or a similar type of motion. This type of motion challenges the complaint and asks the court to make a ruling on it. Sometimes, this takes the form of asking the court to dismiss the complaint in its entirety. Other times, it means asking for certain claims to be thrown out. Prevailing at this stage will prevent the plaintiff from conducting costly and invasive discovery, and could narrow the scope of issues for the case.
These early motions are not likely to dispose of a case. They are time-consuming and expensive to prepare. Even if you win, the court is likely to grant the plaintiff leave to amend the complaint to correct the error. And yet, they are still strategically useful to consider because they put the plaintiff on defense early. A meritorious motion can doom the plaintiff’s case or significantly narrow the scope of the case. Even if ultimately unsuccessful, early motions practice can inform the court of issues with the plaintiff’s case, increase litigation costs for the plaintiff, and deter future litigation.
Why is it important to reach out to a lawyer as soon as possible? Every day that you delay hiring a lawyer is one less day that your lawyer will have to prepare your response. One less day that your lawyer will have to analyze the complaint’s weaknesses, investigate the legal and factual basis for the complaint, and prepare your defense.
Some of the tasks are legal. Analyzing the complaint and probing its weaknesses requires legal research into areas of law that your lawyer is not likely to be immediately familiar with, especially if the complaint makes allegations under an obscure statute or makes many novel legal arguments. (Real-life lawyering is nothing like Suits in this regard.)
Other tasks are factual. You and your lawyer will have to investigate the facts of the case and start gathering relevant documents. This may be especially difficult if the events at issue in the complaint happened many years ago.
The last task is putting pen to paper. Whether that means drafting an answer or a motion to dismiss, it will take more time than you might imagine to prepare these documents because they are drafted specifically for your case.
What do the worst clients do? People who do not know how to manage their affairs think that they have until the clock runs out to hire a lawyer. Some of them mistakenly think the case might resolve itself. (It will, with a default judgment!) The most foolish among them reach out to the plaintiff’s lawyer and think that they are hearing the truth. (A client of mine who I have known personally for years did this instead of reaching out to me first, to my great chagrin.) The worst clients do anything but reach out to a lawyer.
How long does it take to find a lawyer? Finding a lawyer is a lot like finding a new primary care physician or a new therapist. It takes time. Depending on the case, maybe you need a specialist. Maybe you want a second opinion.
When you do finally connect with someone, there is no guarantee that person will be your lawyer. The lawyer might not have any capacity. They might not have any experience in this area. Frankly, they might not be interested in you or your case. They might have a conflict of interest that prevents them from representing you. It’s complicated!
By not starting to look for a lawyer immediately, you are hurting your cause. The fact that you are in a rush because you waited until the last minute is what the youth refer to as a “you problem.” That is not your prospective lawyer’s problem.
What does hiring a lawyer look like? After speaking with a prospective lawyer, you both evaluate if there is a match. The relationship must be documented in an attorney-client fee agreement or an engagement letter. This document sets forth the terms of the representation. Unless the lawyer knows you personally, you will probably be required to pay a retainer as part of the agreement.
If the lawyer is following their own rules, they would not start working on your case until an attorney-client agreement or engagement letter is signed, a retainer check is delivered, and the lawyer’s bank confirms receipt of the retainer in their client trust account.
What should I do next? Send me an email at [email protected] or give me a call, and we can start talking about what to do next. When you call, please be prepared to leave a brief voicemail in the event that I am attending to another matter. If it is something I can help you with, I am happy to help. If not, I can help point you in the direction of lawyers who can help you.