By Mike Christiansen
You’ve been sued. I know you believe the other side is dead wrong. I know you’re certain that you’re in the right. As a lawyer, I hear it all the time. And, truth be told, very often it’s true. But you can’t just call the plaintiff and persuade him of the correctness of your position. You can’t wish a lawsuit away. So, you’ve been sued. Now what?
I’ve been a commercial lawyer for decades. Here I’ve distilled my standard advice into six easy rules designed to help you protect your legal position while coping with the stress and turmoil that lawsuits bring.
1. Act promptly Although a statute of limitations measures the time within which a lawsuit may be brought in years, the time within which you must respond to a suit is measured in days.
If you are served, act quickly. Retain legal counsel or contact your current attorney. Make sure appropriate people in the company are aware of the suit.
Then make sure that the response deadline—often no more than 20 days—is met. If you fail to respond to a lawsuit within the period of time that court rules designate, a default will be taken against you. And when that happens, you can experience all sorts of bad outcomes.
When a default’s entered, you can’t assert any defense. You can’t object. You can’t put forward your own case. You can’t countersue. In many states, if you default you’re not even entitled to get copies of the court papers from that point on. Poof! You’re taken out of the process, but the litigation continues. The next thing you know, there’s a judgment against your company and the plaintiff’s lawyer is checking into your company’s assets and bank accounts. Not good.
2. Stay calm Once you have acted promptly and your attorney has filed papers necessary to respond to the lawsuit, the immediate crisis is over. You can then begin to slowly and deliberately meet with counsel and compile records, documents, witnesses, etc.
At this point, there’s no particular time pressure. Litigation can last for months, and often years, before trial. As long as you are represented by a competent legal team, there’s no need to panic. Granted, litigation is unpleasant, time–consuming and even unproductive, but it is a process through which you can—and should—remain calm.
3. Walk a mile in the plaintiff’s shoes Too often, once a lawsuit is filed, all common sense is lost. Lawyers strut and posture to show their clients how tough they are. Clients believe they and their company are in the right and often take it as a personal affront that a lawsuit’s been filed. There’s no need for that.
Ask yourself: Does the plaintiff have a point? Could the plaintiff even be right? Is it possible that the actual truth lies somewhere between the plaintiff’s version of events and yours?
Although it’s sometimes said that anyone with a few hundred dollars and a bad attitude can file a lawsuit, most people don’t enter into suits lightly. Most often, the plaintiff believes that he has been wronged and is seeking reimbursement for damages. Both sides need to take a hard look at the case from the other’s point of view. When that happens, bridges toward settlement begin to be built.
4. Mediate before trial It’s common legal wisdom that the worst settlement is better than the best lawsuit. Why? Because when you go to court, you are subject to the preferences and prejudices of a busy judge, an indifferent jury and a complicated legal system that seems to intentionally lay traps for the unwary. Plus, there are contingencies for which you can never plan—the inadvertent destruction of evidence, missing witnesses, renegade juries.
Any experienced trial lawyer will tell you that litigating a case before a judge or jury—especially a commercial case—is like juggling chain saws. Jurors don’t understand business cases and judges often aren’t interested. Using mediation and a skilled mediator, you may be able to resolve the matter through a settlement that you largely shape yourself.
In mediation, your voice is heard, not just your lawyer’s. In mediation, resolution is often reached in months, weeks or even days rather than years. There’s no appeal after mediation. If you strike a deal, it’s over. And a mediated settlement is often just as enforceable as a court judgment.
A lawyer may try to dissuade you from mediation. Don’t let her. For a few hundred dollars of mediator time, you can test the waters and see how close to settlement you and the plaintiff can get without the need for a trial. I’ve seen many cases involving hundreds of thousands of dollars that are mediated and settled. Even if the dispute isn’t settled through mediation, the two parties often find themselves having come so close to agreement that they begin to realize how foolish it would be to litigate over remaining small disputes.
5. Prepare, prepare, prepare And then prepare some more. If you haven’t been able to resolve the case and you must go to trial, preparation is critical. Cooperate with your lawyer. Meet with her. Listen to what she tells you. Go over your testimony in painful and redundant detail. If you’ve come this far and the plaintiff has rebuffed settlement proposals, you have no choice but to litigate—and litigate to win.
6. Learn something Whether you win or lose, litigation is unpleasant, costly, unpredictable and something to be avoided whenever possible. Think about what action or inaction gave rise to the lawsuit and don’t let it happen again.
If you need to change your standard contract, change it. If you need to clarify some internal procedures, clarify them. If you need to put a mediation clause in your contracts, do it. If you need to change lawyers, change lawyers. Do whatever it takes.
In our litigious society, lawsuits are part of the cost of doing business. How you handle them is up to you. Follow these simple guidelines and you can make the experience of being sued as “un–unpleasant” as possible.
Mike Christiansen is a Florida Supreme Court–certified circuit mediator and founding member of Mastriana & Christiansen P.A., specializing in business, real estate and telecommunications matters. He received his law degree from the University of Pittsburgh School of Law and has been a member of the Florida bar for more than 30 years. Contact him at 954–561–1711 or mike@m–c–law.com.
