You've Been Served--Now What?
Updated: Feb 27, 2020
Written by attorney Soo Yeon Lee
When you are served with summons to appear in court, you may or may not be surprised. Due to inherent costs associated with filing a lawsuit, going to court is neither the first nor an easy option to resolve a dispute. By the time you receive summons, it is likely that you know what it’s about and why you ended up in that situation. Whether the lawsuit is just or not, and whether you have good reasons or not, one thing is clear: when someone is bringing a lawsuit against you, you cannot just sit around and do nothing.
The American legal system is unique among other nations because it has adopted the adversarial system, which requires each party to vigorously advance and defend its own interests. What this means is that no one will look out for you unless you take actions to defend yourself, even if you think you are the one who has been wronged. In other parts of the world, judges actively participate in the fact-finding process and seek to reach a fair conclusion. But in the U.S. adversarial system, judges are more like referees. Until the trial begins, judges ensure that the lawyers for both sides play by the rules so participants in the judicial system can have their day in court be fair and equitable. The rules of civil court cases equally apply to everyone, but a party who knows less about the rules is at a disadvantage. Below is what I tell my clients at the outset of any litigation.
First, do not, under any circumstances, ignore the summons even if you don’t care what happens in the lawsuit. You may not care what happens in the case because you know you owe money, or you committed the act or omission that’s alleged in the lawsuit. However, not participating in the legal process means that you relinquish control over what will happen to you and how fast or how slow things advance. Even in the most hopeless cases, you will be surprised at the amount of time and choices afforded to a litigant. Therefore, it is important to get an accurate diagnosis at the outset of a lawsuit and create a map through the conclusion of the case with your objective in mind.
Secondly, this is a big picture process of any lawsuit: 1) pleading; 2) discovery; and 3) trial. Pleading and the discovery constitute the bulk of the litigation process. Trial is when both sides present evidence for a judge or jury to decide who has to win.
1. Pleadings: Along with the summons to appear, you will have received a document called a “complaint.” The party who is bringing the lawsuit is called the “plaintiff.” The complaint contains and outlines all the claims the plaintiff makes. The party who is being sued is called the “defendant.” The defendant is expected to file an “answer.” The defendant can also file “affirmative defense” which essentially states that even if what the plaintiff says is true, the defendant still has to prevail. At this stage, the defendant can also attack various aspects of plaintiff’s complaint by filing “motions.”
2. Discovery: Discovery is largely divided into two parts. The first part is written discovery and the second part is oral discovery. During the written discovery phase, both parties exchange questionnaires (“interrogatories”) and documents relevant to the case. During the oral discovery phase, parties as well as witnesses give oral testimony (“depositions”). Deposition occurs outside the court – usually at one party’s attorney’s office. A court reporter will take down everything that’s asked and answered. The entire discovery process can be as short as six months or can be as long as a few years. This takes up the majority of the litigation process and accordingly, it can get very expensive.
3. Trial: If this is a jury trial, you will pick a jury on the day of trial and proceed with presenting evidence. Trial can be as short as a day or can be as long as a week or more.
If you choose not to participate in the process above, the plaintiff will win automatically and will receive a judgment in his or her favor completely out of your control. If you do participate in the process, however, you may be able to reach a settlement, which can occur at any time. In fact, less than 5% of cases actually go to trial.
Throughout any litigation, one thing that defendant should avoid is judgment, which is usually in the form of money obligations. Once a judgment is entered against defendant, the plaintiff can freeze the defendant’s bank accounts, have the defendant come to court to discover assets, garnish paychecks, place a lien on defendant’s property, etc. Until the judgement is entered, if a defendant wishes to ignore a lawsuit, he can do so, but this will let the plaintiff win automatically. Once judgment is entered the defendant can no longer ignore the court’s process. So if you’ve been served, don’t wait—take action!