Attorney: Let’s talk about the lawsuit that your opponent just filed against you. He’s the plaintiff, you’re the defendant. It’s a straightforward, non-complex case. We have 20 - 30 days to respond.
Client: I’ve never been sued before. I’m not sure how to respond.
A: The simplest approach is to file a document with the court called an “answer” to the complaint, denying the plaintiff’s claims and allegations against you. Once that happens, the case is considered “at issue.” That basically means the battle has been joined.
C: What happens if we don’t file an answer?
A: There are other types of responses besides an answer. I’ll explain them. However, if we don’t respond somehow within the required time frame, then you are considered in “default.”
C: What does that mean? Is it anything like what happens when I fail to make my mortgage payments on time and default on the loan? Then the bank forecloses on my house?
A: Same basic idea. When you default in responding to a lawsuit, it means your opponent becomes the automatic “winner” of the case. It’s like you’ve thrown in the towel from the beginning and are not contesting his claims of liability against you.
C: What happens if I default?
A: You opponent can then go into court and offer evidence to prove the amount of money damages that you owe him as the plaintiff. Remember, he is now considered the automatic winner on the issue of liability, but he still has to prove those damages to a judge. He’ll use witness testimony and documents to do that.
C: Once he proves some amount of damages, do I have to pay him?
A: Not right away, but soon. The court will issue a “money judgment” in your opponent’s favor. It will be a court order saying you owe him that amount of money. If you don’t voluntarily pay it, which is called “satisfying the judgment,” he can do a few things.
C: What are they?
A: He can tell all your creditors and the rest of the world about his money judgment against you by recording the judgment in the public records. Everyone who looks will be able to find that judgment against you.
C: Can we do anything to stop that from happening? Like how I get one last chance to stop a foreclosure on my house if I make up the past due payments before the bank sells the house?
A: Yes, you can, but it’s more expensive. After a notice of default is filed against you by the plaintiff, we would have to file a “motion to set aside default.” A motion is a document that asks the court to give us relief and requests a court hearing on that. If we could show good cause, we could get the default against you set aside.
C: Then what would happen?
A: We would go back to square one and would still have to file a response to your opponent’s complaint. You wouldn’t be able to avoid the lawsuit. We would have just taken an expensive detour. But none of that is going to happen here.
C: Okay, back to filing an answer. What will it say?
A: Sometimes a defendant’s answer can be what’s called a “general denial,” where we say in a single “blanket” paragraph that we deny all of the plaintiff’s claims and allegations. Other times we have to rebut, point-by-point, item-by-item, each and every claim and allegation against you. That’s a much longer document. It’s called a “specific denial.” Fortunately we can do a general denial here.
C: The general denial will be less expensive?
A: Yes. It’s less work for both you and me.
C: Is there anything else we put in the answer besides that one blanket paragraph?
A: Possibly, yes. The general denial basically says, “the plaintiff is wrong in what he’s saying about the defendant.” It’s a defensive posture for us. However, there are two opportunities to go on the offensive when we answer the complaint.
C: What are they?
A: First, we can include in our answer what are called “affirmative defenses.” Let me explain how those differ from the general denial. With the general denial, we force your opponent, the plaintiff, to meet his burden of proving the truth of everything he’s said about you in the complaint. If he can do that, he wins the case.
C: Then what does including affirmative defenses do for me? I’ve never heard of them before.
A: Even if the plaintiff can prove everything he says about you, affirmative defenses give us the chance to completely nullify his win. It’s like he wins, then we take the win away from him. However, we have to meet our burden of proving those affirmative defenses, or your opponent preserves his win.
C: Give me an example.
A: The statute of limitations is a classic affirmative defense. That means you have to sue someone within a certain number of years, or you lose your right to sue them at all. Let’s say your opponent waited too long to sue you here. Depending on the facts of your case, we may be able to plead the statute of limitations as one of our affirmative defenses in our answer. Then, even if your opponent happens to prove everything he said about you, if we can prove that he waited too long to sue, his win turns into a loss. We nullify him.
C: What is the second opportunity?
A: They are called “counter-claims” or “cross-claims.” We normally have to plead them at the same time as our answer. It basically means you’re counter-suing your opponent as part of the same lawsuit. Both of you then have lawsuits going against one another simultaneously.
C: Give me an example of how that works.
A: Let’s say your opponent sues you for money he says you owe him. You deny that you owe him anything, and also plead affirmative defenses to try to nullify his entire case. But say your opponent also kept property that belonged to you because you didn’t pay him, and you want him to return it. You need to counter-sue to get it back. You would file a counter-claim or cross-claim in the same lawsuit to get that relief.
C: Why wouldn’t I start a brand-new separate lawsuit against him?
A: Because if your claims against him arise out of the same facts and circumstances as his claims against you, you both have to sue one another at the same time. That’s because all the claims are related to one another.
C: Unfortunately, I can’t think of any grounds to counter-sue him, but I’ll let you be the judge of that.
A: Yes, based on the facts and information you give me about the case, I’ll be able to determine which affirmative defenses we can plead, and whether we can counter-sue for anything.
C: How much will this cost?
A: I’ve prepared and filed answers for other clients in this type of lawsuit before. I'll need to review some of the evidence as I'm doing it. Drafting the general denial and affirmative defenses should take up to 2 hours, at my $250 per hour rate.
C: So that’s about $500 in legal fees?
A: Yes. However, if you have valid counter-claims or cross-claims against your opponent, I’ll have to spend a lot more time analyzing, researching, and drafting them, just as if you asked me to file a lawsuit for you from scratch. A rough estimate would be up to $5,000 in legal fees to do that. But it’s too early for me to know yet. I need to learn more about your case first.
C: Any other costs involved?
A: A few hundred dollar filing fee to file the answer with the court.
C: What happens after that?
A: Normally, once the case becomes “at issue” with the filing of our answer, both sides then start pre-trial discovery proceedings in the lawsuit. We can talk about that next time.
[TO BE CONTINUED]
© 2008 Ken Moscaret. All rights reserved.