What If You Are Sued?

Answering a suit in small claims court.

If you are sued, the very first thing to do is read the summons thoroughly. It will tell you how long you have before you need to do anything. But if it says you need to do something, such as respond or appear in court within 10 days, you must, or you may lose all your rights to contest the plaintiff's claim. If you mail your response, it must be in the clerk's office within the time allowed.

The next important point to remember is that you shouldn't panic. All those nasty things the plaintiff said about you in the Statement of Claim or Complaint are just allegations, just bare assertions. The Complaint is not proof of anything except that someone has sued you for what they say is a legal claim. The plaintiff must prove it.

Your formal written response to the Summons and the Complaint or Statement of Claim that comes with it is formally known as your Answer. It can take many forms depending on your position in the case. Whichever form it takes, once you file it, you should send a copy to the plaintiff at the address listed on the Complaint or Statement of Claim. The clerk should do this also, but you do not want to take the chance on a delay of your trial because the plaintiff did not get a copy of your response.

Some possible responses are as follows:

When the plaintiff is right. If there is no legal reason for you not to pay the full amount that the plaintiff has sued for, you can admit it in your Answer. If you act quickly, you can still prevent a judgment being entered against you by contacting the plaintiff to negotiate a settlement. You can take the position with plaintiff that you will not contest the claim if you are allowed to pay a little less or in installments. If you agree before the time is up for you to file an Answer, you and the plaintiff can enter a Consent Agreement, or Consent Order. As you can see by their terms, no judgment will be taken against you as long as you live up to the agreement. The advantage gained by this is that your credit report will not show a judgment against you. Local and national credit reporting agencies regularly monitor who loses lawsuits by having judgments entered against them. Adverse judgments are not good for your credit rating.

Even if you do not have time to negotiate, you can still admit the claim in your Answer. Even though the plaintiff will be entitled to an immediate judgment against you, nothing in the legal system is immediate. You can still contact the plaintiff to work out a payment plan after you file your Answer.

It's to the plaintiff's advantage not to have to take extra steps to collect a judgment if you agree to pay it on certain terms, and then actually do it. You simply need to get your Consent Agreement or Order to the judge before the judgment that results from the admission in the Answer is signed by the judge and filed by the clerk. This may take one to two weeks after the Answer filing deadline.

When the plaintiff is right, won't take payments, but you can't pay it all now. Put this in your Answer. In many small claims courts, judges can order that judgments be paid in installments. You may be asked to go to court to briefly explain your circumstances, but it could be worth it. If a judgment for the full amount is entered against you, you could be unhappily surprised by having your bank account seized, part of your wages taken through a garnishment proceeding, or your car disappear from your driveway-all of which are means judgment creditors can take to collect the judgment.

When you owe some, but not all of what the plaintiff claims. In your Answer, write it out. For example, "I owe her some money, but not as much as she claims." If it ends up in trial, the plaintiff will still have to prove how much you owe. This could happen when the plaintiff has just asked for too much, or because you have a claim against the plaintiff that partially offsets her claim. If you have a right to set off part of the claim, you will need to state in at least one sentence why and how much you say you are entitled to subtract. At trial, you will first need to prove your right to have a subtraction, and then prove the specific amount.

When you owe the plaintiff something, but the plaintiff owes you more. This is just like the last example, but your claim against the plaintiff is larger than the plaintiff's claim against you, so you want the court to wipe out the plaintiff's claim and give you a judgment for the difference. If the judge decides the plaintiff's claim is groundless, or it fails because the plaintiff doesn't prove it, you can win and collect all of your claim.

A defendant with a counterclaim against the plaintiff's claim wears two hats, and one defensive. He is required to defend against the claims of the plaintiff and then switch hats, go on the offensive, and prove a right to recover from the plaintiff, and how much he believes he is entitled to.

When you owe the plaintiff nothing, but you have a whopping claim against him. Simply write, "Plaintiff's claim is denied." Then state your claim. This claim you have against the plaintiff is your Counterclaim. After you state in your Answer why you are not indebted to the plaintiff, just as if you were the person filing the suit initially, you should write out the basis of your claim against the plaintiff in a succinct but complete way, and ask for the specific amount you think you are entitled to from the plaintiff. Your evidence will prove your right to recover, and the amount. Again, with your counterclaim, you need to produce enough believable evidence to convince the judge that the plaintiff is liable to you, and the specific degree to which you were damaged-your damages.

When you owe the plaintiff's claim, but somebody else is responsible for all or some of it. This does not happen often, but can, in both contract and tort cases.

Wellington put a rebuilt carburetor in Jennings' car and gave him a 30-day warranty. On the last day of the warranty, the carburetor went bad at 2 a.m. while Jennings was 75 miles from the nearest town. Jennings sued for the $125 cost of repair, plus the $95 towing bill.

When Jennings sued Wellington, Wellington agreed to pay some of the damages, but also claimed that Murphy, who had sold Wellington the rebuilt carb, should pay some too. So Wellington brought Murphy into court by filing a Third Party Complaint against him. (See Chapter 24 for a sample "Third Party Complaint" form, as well as other forms you will need.)

Something similar could also happen in a tort case. Let's take a look. Bodkin bought an ax from Jack's Hardware. While using it a short time later, the head came off and caused Bodkin a nasty cut. When Bodkin sued Jack, Jack brought the ax manufacturer into court, because he felt the manufacturer should be at least partially responsible-maybe even fully responsible-for the damage to Bodkin.

Again, this is a matter the court clerk should know by heart, and he or she will give you the what and wherefore to get this done.

When the plaintiff is just flat out wrong. Just deny it. Writing something like "I deny everything the plaintiff claims" will work.

Any time you file an Answer, you can assert any of the defenses mentioned in the chapters on contracts, torts, or combinations of the two, depending on what kind of case it is. The plaintiff usually does not need to respond to a counterclaim until trial.

Counterclaim or not, when you are served with legal process notifying you that you have been sued, you must do something! If you fail to do anything or just ignore the summons, a judgment could be entered against you by default. You will lose without even playing.

When no response is filed to a Complaint or Statement of Claim within the time allowed, the defendant loses the right to contest the suit, and may lose the right to be notified of any further action in the case. In most cases, judges are authorized to issue a judgment for the amount sued for when the case is stated clearly in the Complaint, and there is a clear right to recover a specific sum of money.

If there is any question about the nature of the case or the amount sued for, the plaintiff may be notified to appear to testify about how the amount sued for was calculated. In some courts, the defendant may be notified also to argue and present evidence against the plaintiff on the sole issue of how much the plaintiff should recover. In these cases, the only question is how much the plaintiff win should. The plaintiff's right to win is established by the defendant's failure to respond to the Summons and Complaint.

Calling the plaintiff to court to prove damages is likely to happen where the amount of damages is uncertain because of the kind of case it is. If the plaintiff sues for "$2,000 for pain and suffering," the calculation of the damage is so subjective, a judge will probably want to know how the plaintiff decided on that figure for these unliquidated damages.

Where the amount of damages is fixed and specific, or liquidated, as in "$350 due on account for 100 pieces of lumber at $3.50 each," a hearing will not be required. Plaintiff wins without a fight! Seems a little deflating to me.

Assuming the defendant has at least filed an Answer, the case will move toward trial. If you fail to settle your case before trial (be sure to let the clerk know if you do), the clerk will notify you of a trial date.

Discovery

Between the time an Answer is filed and the trial, many courts have a set period for you to find out about what the other side intends to prove at the trial, and for them to find out about your claim. This process is called discovery, and the forms and procedures you can use should be explained in the court's rules or procedure manual you picked up from the clerk earlier.

The rules of discovery usually allow the parties to submit written questions to each other to be answered under oath, file requests to examine documents or other evidence that a party expects to produce at the trial, and to produce the list of witnesses the other party expects to have at the trial. The rules of discovery vary widely in the different courts throughout the country. They can be helpful in getting information for you to assess the strengths and weaknesses of your case against the opposing party's. The more information you have, the easier it will be for you to reach a favorable settlement or to predict a trial outcome.