How to Survive a Lawsuit
Just minutes ago you were having a relatively calm dinner with your family. At least it was as calm as a dinner table can be with an 11-year-old and a 14-year-old both trying to simultaneously relate the trials and tribulations of their day.
Then the doorbell rang.
You got up, hastily wiped your mouth, placed your napkin on the table, and answered the door.
An ordinary-looking chap was standing there. He confirmed, by politely asking your name, that you were the person he was seeking. Then he handed you a half-inch-thick sheath of papers that were folded inside a heavy stock sheet the color of medium blue. As the ordinary fellow turned to leave he stated perfunctorily: “You have been duly served. Have a nice day.”
In a moment he was gone.
You are a little bewildered. The “have a nice day” words are still ringing in your ears.
You look down at the papers and unfold them. The papers look very official. At the top you notice the name of a court. Then you see a group of names that you do not recognize, followed by the word “Plaintiffs.” Your eyes drift to the right and you see in large, bold font capital letters, the word “Summons.” Next, your eyes instinctively dart to a second list of names that are followed by the word “Defendants.” Your own name jumps out at you.
Your heart begins to pound so hard you think it is going to burst out from between your ribs. Your hands are becoming clammy and you see that they are shaking. It’s easy to tell that your hands are shaking because the papers they are holding are shaking…vigorously.
Not even aware that you are doing it, you close the door and, unconsciously, like you are having an out-of-body experience, you retreat to the quiet of the nearest living room chair. You are trying to read all the words at once and they are barely registering in your poor overwhelmed brain.
The realization comes in a wave of understanding.
You are being sued!
Yes, You're The OneWhat the hell is this? This can’t be right. The ordinary man must have made a mistake giving these papers to you. You want to get out of the chair and call after him to take the papers back. But he is gone. It dawns on you that it really is your name listed as a Defendant. It is you that he wanted to give the papers to.
Your mind is screaming, raging with questions that you don’t even know how to ask yet. There has to be some mistake.
As you slow your rapid breathing and try to focus on the papers, your spouse calls from the dinner table, “Who is it, dear?” You respond evasively, “Nothing, honey, just someone dropping off some papers from work.”
You squirrel the papers between the cushions of the chair and try to act like everything is normal when you return to the dinner table. The children are still babbling enthusiastically and do not notice. But you cannot conceal the serious, pale look on your face from your spouse. With an abrupt negative nod of your head and a quick “We’ll talk later,” you cut off any questions. You mechanically consume your dinner that now tastes like cardboard. You excuse yourself before dessert, retrieve the papers and find a quiet nook in the house to continue reading.
Although your insides are queasy, you are able to focus better this time and you ascertain that yes, you are being sued. The first page Summons is followed by a “Verified Complaint.” You now recognize the names of some of the other defendants. They include a general contractor, an owner, and several sub-contractors on a job that you designed a couple of years ago.
You continue and read further. Much of the document is obnoxiously repetitious. Each paragraph provides only a little more information than the one before.
Then you come to paragraphs that give a clue what this is all about. It seems that several people were injured at the facility and they apparently think that you and each of the other defendants are all responsible.
As you reach the end of a rushed, fast, first read of the papers, your queasiness turns to an anger that makes you absolutely want to wretch. These people who you do not know, who are suing you, are seeking damages for $200 million dollars! Two hundred million freeking dollars! Seeing this amount on the papers sucks the oxygen from your lungs.
Your mind starts firing blanks again. You have to consciously control your breathing and fight to not scream out loud.
Your mind has gone into uncontrollable overdrive. Like a near-death experience your life starts flashing before you, and then you experience awful thoughts that… you have no future, your job is gone, your reputation is gone, your license will be revoked, everything you have worked for is gone, and your children will not have a college education. Your world is crumbling beneath the oppressive weight of the papers.
You will, as a result of having received this bundle of papers, over some period of time travel through all the psychological stages of confusion, denial, anger, and acceptance that you have been sued.
What To DoOnce you share the awful news with your spouse, he or she asks you the question that begins to put you on the track you need to be. “What do we do?”
When you recover a sufficient amount of composure, you can begin to think about the answer to that question.
I am here to suggest to you what you should do/must do.
1. Remain calm.
I know. That sounds trite. Such advice is much easier for me to say than for a recently sued person to actually do.
Begin by realizing that hundreds of thousands of people are sued every year. Some of those suits end favorably to the person(s) being sued because they have done nothing wrong, and nothing they deserve to be sued for. Some defendants make early successful motions for summary judgment and are exculpated relatively quickly. A few of those suits are settled quickly and easily. Others are settled, but not so quickly or so easily. A few of those suits proceed all the way to an adversarial trial. It will take some time and effort to determine which will be the fate of your lawsuit.
2. Do not confuse your own fate with the fate of your lawsuit.
A lawsuit, as you will self determine as time passes, will merely be one detour or one speed bump on the highway of life. At the moment you first receive those dreaded papers, that speed bump sits on your chest feeling about the size of Mount Everest. The lawsuit will determine or define your life only for as long as you permit it to.
Each of us has only limited control over much of our own lives. The one thing that we all do have control over is our own attitude with regard to what life is doing to us. If former President Clinton had allowed his alleged criminal charges or impeachment process to define his life or his presidency, he would have doomed and damaged himself. He maintained a positive mental attitude throughout his ordeal and is still a very viable political presence that sways the opinions of millions. He demonstrated the most amazing resiliency I have ever witnessed.
Regardless of your party affiliation, you must recognize and admire his composure under fire. If you can manifest just a fraction of that composure you will likewise minimize the effect of any adverse twist in your life.
While we are at this early stage of suggesting your actions and reactions to being served with legal papers, let me give you a bit of advice.
3. Please, just politely accept the papers you are served.
The process server is merely a messenger. Some folks, if they get wind that they are about to be served with legal papers take extraordinary measures to make themselves scarce and to avoid actually being physically handed the papers. That is a waste of your time and energy. If process servers are unable to physically deliver the papers to you, they have alternative methods of serving you that you do not wish to encourage.
For instance, a process server may then show up with a uniformed law enforcement officer, perhaps causing you and your family or your co-workers even more concern and embarrassment. If you become too difficult to physically serve, then the process server may do a “nail and mail” service. Simply, the process server affixes a copy of the papers to your door and then mails you a copy. Once the process server files an affidavit of having done this, then you are duly “served.”
Even worse, if you prove difficult to physically serve, the attorney for the plaintiff may seek a court order to serve you by “publication.” That means that the “Summons” and/or the “Complaint” may be published in local newspapers multiple times to accomplish the action of serving you. It is unnecessary to cause yourself that kind of public embarrassment.
The whole purpose of requiring that a person or entity be “served” with papers is that the legal system is protecting defendants by being sure that they have actual notice of the fact that they are being sued. That way the defendants have an opportunity to defend themselves.
If you do not know you are being sued, you cannot defend yourself. It is possible that you could be served by one of the substitute service methods and lose your case by default - all without ever having actual knowledge that you have been sued. It is better to receive the papers as early as possible so that you may begin defending yourself as soon as possible.
In the old days, before the courts became smart to the issue, there were unsavory process servers who would perform what was called “Sewer Service.” The process server would literally dump the papers down a sewer and then go back to the attorney, say he had delivered the papers to the defendants, and collect service fees. Nowadays, when papers are served, the courts uniformly require that the process server file an affidavit, swearing under oath that the papers were actually served. To lie on such an affidavit would have criminal consequences, so “sewer service” has, for the most part, been eliminated.
Most states have statutes making it a misdemeanor criminal act to interfere with a person engaged in the service of legal process. To get into any physical confrontation with the person serving process upon you would be a very unwise action. Not only would you face a separate criminal proceeding, but you would also enter the lawsuit with a big black mark on your slate. I assure you that the word would get around the courthouse that you are the one who pummeled the process server. Not good. It will thereafter be difficult to pass yourself as the good guy wearing the white hat in your case.
I’ve known of individuals who refused to accept the documents into their hands, or others who upon receiving papers threw them back at the process server. Sorry, but it is too late to do that. Once you are served, you are served. Don’t bother with the dramatics. You will be hurting only yourself. Simply accept the papers. Then you get on to what you really do need to do.
4. You need to IMMEDIATELY CALL YOUR OWN LAWYER.
Time is of the essence. Usually, once you have received the papers the clock starts ticking. In most jurisdictions, you will have 20 days within which to formally respond to the papers or lose by default. Do not delay contacting your own lawyer. You and your lawyer have much to do in those 20 days.
Among the things that you and your lawyer will need to do together is to promptly communicate with your insurance company, if you are insured. All policies of insurance require prompt notice. If you fail to give prompt notice, you may give your insurance company grounds to deny your claim. You do not want to do that. If you are not insured, then you absolutely need to get your own private counsel involved forthwith.
Your insurance company is contractually obligated to do two paramount things for you. First, they have a duty to defend you from the lawsuit. Second, they have a duty to pay any covered loss, up to the policy limits.
One of the reasons I suggest contacting your own attorney first is that your attorney will help you to give appropriate, timely notice to the insurance carrier. Depending on the particular circumstances of your case, you may wish to have all communications to and from your insurance carrier be only through your attorney. It is usually best to just provide the insurance company with a copy of the legal papers you received with a very, very brief cover letter. This is not the time to start telling the insurance company everything you know about the case. That will come later. For now, just the bare fact that you have been served with these papers will do.
If the lawsuit is seeking big bucks, which they usually do, you will probably require the protection of both the insurance company attorney and your own private counsel. It is essential that you speak only to your own private counsel first. Communications between yourself and your attorney are privileged and confidential. Communications between yourself and the clerk at the insurance company who answers the telephone may not be respected as privileged.
Please be aware that if the lawsuit seeks a judgment for an amount that is in excess of the limits of your insurance policy, your private counsel and your insurance carrier counsel may have to work hard to coordinate a single, unified formal written reply to the lawsuit. They will need time to work through that.
You may be of the opinion that you have done absolutely nothing wrong and that justice will prevail and you will be vindicated in this lawsuit. Because of this, you may believe that you can and should just immediately tell the whole truth to your own insurance company. Please do not. Do not speak to anyone about your case except through your own lawyer, PLEASE.
When your insurance company sends you claim forms to fill out, please do not fill them out without first consulting with your own private counsel.
5. Once you enter the legal arena, you have to understand that you are potentially vulnerable.
You are in an arena of legal combat and you need to use all of your shields and all of your weapons. Your lawyer(s) is/are both your shield(s) and your sword(s). As an engineer, you are accustomed to the daily battles of your own profession. You may be a most formidable warrior in your engineering domain. But once you enter the legal arena, your skills are not the ones you need. You should not show up for a gunfight with only a knife. You should not take a step in the legal arena without legal counsel.
I have many garrulous clients who I caution constantly to maintain silence. I caution them not to have any communications with anyone about their case without me participating. I cannot unsign your name from a contract and I cannot unsay a word that you have spoken.
I sometimes warn clients that if they sign a document before I review it, or if they make a statement without first running it by me, then all I will be able to do is to hold their hand while they cry. That service they could get from a bartender for a lot less money. If you have legal counsel avail yourself of your counsel’s advice BEFORE you act or speak.
I suggest that you write down and memorize the following statement to be used whenever anyone contacts you about your case: “My attorney has advised that I not discuss this matter with anyone unless my counsel is present. For any further information please contact my attorney, _________, at his/her office telephone number, which is _____________.” Then politely excuse yourself and DO NOT say anything further about the case. If the person approaching you asks a further question you respond with the same statement, again.
After you repeat your memorized statement several times they should get the idea and leave you alone. You may be tempted to answer just a little question. Don’t do it. You are being baited. If you answer the little question, you will feel free to answer the next question and the next. Do not answer the first question - not even the most innocent sounding innocuous question. Don’t do it.
A practical suggestion: When you call your attorney immediately and advise that you received the papers, it would be really helpful if you could promptly FAX a copy of the papers, too.
That way your attorney will have a chance to read the papers, digest the import thereof, make notes, think of questions to ask you, and maybe even do some legal research before you actually meet to discuss. Let your attorney know that you would appreciate assistance in promptly notifying the insurance carrier.
6. If you are employed by a firm, you likewise have a duty to promptly let the firm and their insurance carrier know of the lawsuit.
I strongly urge you to have your attorney participate in that process, too. Your attorney may even wish to give written notice to the firm and their carrier that all communications regarding the suit must be directed only to your attorney. You are then placed in the relatively comfortable position of being able to say: “On the advice of counsel, I am instructed not to discuss this matter without counsel being present.”
Please be aware that your position and that of your employer with regard to the lawsuit may or may not be congruent. The only absolute thing that you must both do is to promptly alert the employer’s insurance carrier. But again, your own private counsel should participate in that endeavor.
If you have insurance and your employer also has insurance, it is necessary that both carriers be timely notified. Please do consult with your own private counsel with regard to both those notices and all additional communications with the carriers.
If you have any additional layers of protection, such as an “Umbrella Policy,” you will likewise need to provide timely notice - again, with the assistance of counsel.
7. Once all the appropriate notices have gone out to insurers and employers, you should promptly, through your own private counsel, alert all of the other listed co-defendants so that they can likewise provide timely notification to their respective insurers.
One reason to provide prompt notice to co-defendants is that you may, if you were wise in the initial contracting stage of the underlying project, have insisted on indemnification agreements from the general contractor and/or other contractors and subs in the project. If you fail to give adequate, timely notice, the indemnification may be lost.
8. You will need to close the barn door and circle the wagons.
By closing the barn door, I mean taking steps to prevent further injuries, losses or damages.
If there is any mitigation of existing or potential damages, then such mitigation efforts should commence immediately - but again only with the advice of your own private counsel. To mitigate damages is both legally and morally correct. But how and when mitigation is done can have severe legal consequences and must be done cautiously. The wrong mitigation, done the wrong way, at the wrong time, may constitute an admission of negligence that will unnecessarily surrender substantial legal advantage in your case.
By circling the wagons, I mean taking all steps that can be taken, at that time, to CYA (Cover your ASSets). You need to immediately retrieve and preserve all possible evidence that pertains to your case. Some evidence evaporates…literally. For instance, if it was an excessive snow load or ice load that caused a structural failure, the quantity, weight and density of that snow or ice is important evidence. Since the snow or ice will melt and evaporate, it is fungible evidence that requires prompt action to preserve with photographs, measurements, etc. If you wait even one day, that evidence could be lost forever.
It would be very helpful to your attorney if you could write out a one- or two-page (maximum) chronological history overview of your side of the case. But definitely do not share that document with anyone other than your own private counsel.
Of course, being the meticulous engineer that you are, you probably already have fastidiously kept detailed, date-stamped, voluminous records of the entire project, that are cross referenced and easily retrievable, right?
If you have, that’s great. If you have not, then you need to promptly obtain all the reconstructed records you can. Quickly obtain courtesy copies from other co-defendants. Get together all the contracts, drawings, plans, specs, photos, etc. that you can lay your hands on. You do not know which piece of information may save your bacon. Once the proverbial hits the fan, they will be closing their barn doors and circling their wagons, too.
The General Contractor that loved your work last week may suddenly start looking at you like you are the enemy when they see the big numbers in that Verified Complaint. You may also be able to obtain copies of records from public sources such as building and zoning department records. Do it quickly. Do it before any of those gems mysteriously disappear.
In this digital day and age, you have hopefully photographed and/or video taped every aspect of the project and preserved them all on clearly dated and labeled disks. Detailed photos that can show that inferior materials were substituted or that specs were not followed, may save your professional bacon.
Of course, what pulls your bacon out of the fire may put someone else’s bacon in a hot spot. Plaintiffs become giddy when co-defendants all start pointing fingers at one another to take the heat off themselves.
9. You should resist the personal impulse to point fingers unless and until your private counsel says it is time to do so.
Strategies, tactics, and timing can make a world of difference in the settlement or verdict in a lawsuit.
10. Insurance is certainly one way to minimize your future expected expenses.
Lawsuits are time consuming, energy sapping, and very, very expensive. I know of some professionals who understand the probability that they will be involved in some form of litigation and consider that likelihood as a cost of doing business. Some set aside a “cushion fund” of 1% of each project. If, when you retire at the end of your career, you have had no claims, you will have a little kicker for your retirement funds. If a claim is asserted, you will have some wherewithal to defend yourself.
11. Make sure you engage in two major educational programs.
First, you will need to educate your attorney(s) with regard to the design and engineering of the allegedly offensive project and all the related codes, standards, rules, regulations and all of the technical aspects of the project. Second, you will have to educate yourself about the rules, procedures and jargon of the legal proceedings to which you have been involuntarily introduced.
Working together with your lawyer(s) in surviving a lawsuit is much like working with your doctor in diagnosing, triaging, and treating a medical emergency. Doctors are required to provide you with sufficient information about your medical circumstance to permit you to give “informed consent.” Likewise, you should insist that your legal counsel provide you with sufficient education and legal facts to enable you to make informed decisions regarding the conduct of your legal case. The more educated you become about the legalities, the better partner you are with your lawyer to preserve your own treasure and reputation.
12. If you have a professional firm and employ others, talk to your attorney about forming an LLC or a PC to limit your personal exposure.
If one of your employees should have a bad day at work and bring a lawsuit down on you, there will be one extra shield for your personal assets.
13. Because being sued is a major emotional challenge, consider seeking professional mental health counseling.
Although not all engineers are “bonkers” and “off the wall,” because of severe over-exposure to math, anyone (engineer or not) who is named as a defendant in a lawsuit is going to need some super coping skills to be able to put the lawsuit in perspective and continue the remaining ordinary stresses of family and career.
Surviving a lawsuit is not easy. Ask anyone who has been sued. They will undoubtedly verify the level of emotional and financial trauma they sustained. Although not easy, lawsuits are survivable. The best way that you can prevent and survive a lawsuit is to prepare every project you ever participate in as though you were sure that this is the one that will result in a lawsuit. Someday you may be correct. And if that day does come - you will be prepared.