You’ve Been Sued: Now What?

Being served with a lawsuit is irritating, and typically nerve-racking, even for seasoned in-house counsel. Having a plan in place to rapidly and appropriately handle new lawsuits can ease the stress of being sued.

Though no two fits are an identical, we offer a guidelines of common finest practices to comply with when your organization faces new litigation. These steps will assist to make sure vital deadlines should not missed and your organization is rapidly in the most effective place to defend itself. Whereas we’ve centered on federal lawsuits, most states can have comparable necessities, albeit with totally different specifics like differing due dates for particular actions.

Fastidiously overview the criticism and make sure the date of service (and during which Court docket the criticism was filed).

• Contact your registered agent immediately to substantiate the date the lawsuit was formally served. This may can help you calculate the response deadline, which generally is 21 days for federal complaints. SeeFed. R. Civ. P. 12(a)(1)(A)(i). Response deadlines in state court docket and arbitrations range.
  • You should definitely verify the Court docket’s native guidelines to substantiate the response deadline and procedures for guaranteeing any extension of time to reply.
• If opposing counsel asks whether or not you’ll waive formal service, the reply usually needs to be sure. In federal court docket, waiving service permits a defendant 60 days to reply to the criticism. Fed. R. Civ. P. 4(d)(3). If a defendant refuses to waive service, the court docket could order the defendant to pay the prices of service and attorneys’ charges related to amassing these prices. Fed. R. Civ. P. 4(d)(2).
  • In federal court docket, waiving service usually waives complaints about defects in service or service of course of however not private jurisdiction, venue, or different grounds for dismissal. See Fed. R. Civ. P. 4(d)(5). 

Overview the docket to see whether or not something past the Criticism has been filed.

• Generally in state court docket proceedings, courts enter uniform case administration orders at first of an motion, which embrace varied deadlines. Overview the case’s on-line docket to find out whether or not any case administration or different orders have been entered.

Implement a doc maintain and ship related custodians a preservation discover.

• To keep away from arguments concerning spoliation of proof or obstruction of justice, after receipt of a lawsuit, corporations instantly ought to take steps to protect related paperwork, together with electronically-stored info. Work together with your IT personnel or vendor to pause all routine doc destruction practices and guarantee key workers know to not delete or destroy related supplies, from handwritten notes to ephemeral (e.g., Sign) messages.
• Advise recipients that the doc maintain discover is confidential and remind workers of their ongoing obligation of loyalty to the corporate.

Think about preserving key testimony.

• Generally, recollections change as time goes on. Think about whether or not to protect key testimony by way of an interview with, or affidavit from, key workers or witnesses.

Notify your insurer.

• Promptly notify all insurance coverage carriers which will cowl litigation bills or contribute to a settlement. Failure to well timed put insurers on discover of a declare could waive sure rights and even protection for a declare.

Retain outdoors counsel and consider conflicts.

• Promptly retain outdoors counsel to completely consider the criticism and think about subsequent steps within the litigation.
• If an organization and particular person workers have been sued, think about with outdoors counsel whether or not any workers want counsel separate and aside from the corporate’s counsel to keep away from conflicts of curiosity. It’s simpler to handle this problem on the outset reasonably than anticipate opposing counsel to file a movement to disqualify, doubtlessly leading to each the corporate and workers needing new counsel.

Think about whether or not you’ve got counterclaims, crossclaims, or third-party claims.

• With counsel secured, you need to think about whether or not you could have counterclaims, crossclaims, or claims in opposition to third events. Such claims will be waived if not well timed offered. This consideration is especially urgent in case you intend to reply the criticism reasonably than transfer to dismiss it, as counterclaims and third-party claims usually should be included with a solution. See, e.g., Fed. R. Civ. P. 13(a)(1), (g); 19(a); 20(a). 

Start consideration of potential knowledgeable witnesses

• Early retention of knowledgeable witnesses might help focus and information discovery and, in nuanced fields, helps to make sure opposing counsel doesn’t retain and subsequently battle out all preeminent consultants.
• Retain consultants on a consulting foundation early on to guard the privilege. Because the case progresses, think about whether or not to designate the knowledgeable or his or her colleague as a testifying knowledgeable. Testifying consultants are invaluable in breaking down advanced ideas for juries – and attorneys!    

Dealing with litigation could seem overwhelming, however contemplating a considerate response to a criticism, getting an early begin on preserving and amassing proof, and avoiding waiving insurance coverage protection and even claims in opposition to others will place your organization for achievement and keep away from pointless problems or setbacks because the case progresses. Foley is right here that will help you handle the brief and long-term impacts within the wake of regulatory modifications and litigation considerations. Now we have the assets that will help you navigate these and different essential authorized concerns associated to enterprise operations and industry-specific points. Please attain out to the authors, your Foley relationship accomplice, or to our Well being Care Observe Group and Well being Care Litigation Space of Focus with any questions.