Ask the Attorney – We’re faced with a lawsuit, now what?
By: Ken Smith
Q: I just received notification that I am going to be sued. What should I do now to prepare myself and my business for the litigation ahead?
A: First of all, try not to panic. Whether the notice names your business or you personally, finding out that you are being taken to court can be a shock. You may be angry, confused, hurt, or some combination of all of the above. Yet in today’s business environment, it is almost inevitable that you will encounter the threat of litigation at some point.
In the face of a potential lawsuit, the most important thing you can do is to have a plan. Having a plan in place will help reduce the stress associated with a notice of a legal claim and allow you to carefully prepare and respond to the notice. It is critical not to delay once you receive an “intent to sue” letter. There may be time-sensitive deadlines that you must respond to, as well as potential evidence in your possession you may need to preserve.
In some cases, you may not even receive intent to sue letter, and instead receive a complaint already filed in court. If you are served with a complaint, you have a deadline to respond – usually under a month. Regardless as to whether you receive intent to sue letter or a complaint, you should take the following steps as soon as possible:
- If you or your business has liability insurance, now is the time to use it. Advise your insurance carrier as soon as possible of the potential claim so they can begin taking proper steps on your behalf.
- Contact your attorney – or your carrier may help set you up with one – and have them guide you through this process. Having a lawyer assist you with gathering documentation, speaking with your employees about the claim, and setting up a plan of action is invaluable.
- There are also people not to contact: namely, the plaintiff and the plaintiff’s attorney. Allow your attorney to initiate contact with the potential litigant.
In the meantime, as mentioned, there may be instructions to preserve evidence in the notice letter. Even if not, it is wise to begin gathering and preserving documents that apply to the person bringing suit. In fact, you have a legal obligation to preserve evidence, and you can face additional claims if evidence is purposefully or negligently lost or destroyed.
Whether the prospective plaintiff is a former client, employee, customer, etc., there are a litany of items you may have to preserve. E-mails involving the plaintiff may come to mind first, but you also need to think outside the box. Do you have any written notes about the plaintiff? Business or employee files involving them? Human resources documents? Voicemails? Gather what you can and put it in a file. Be careful not to mix in any legal documents, as these may be attorney-client privileged. Instead, put those in a separate, legal file.
Even if you aren’t taken to court at the end of all of this, being organized and prepared can protect you and give you peace of mind. And if litigation becomes a reality, or if you have already received a filed complaint, having a plan and someone to help you every step of the way can make all the difference.