Responding to a Lawsuit

This article focuses on what to do if you have been sued and dispute the claim and/or the amount claimed to be owed. Please note that you should contact an attorney/solicitor if you have been sued. There are numerous intracacies that you should not attempt to navigate on your own. This article will describe a few of the normal paths, but it does not catch everything.  Rather, this should give you an idea of the issues to discuss with your attorney.

First off, until you are served with the papers that start the lawsuit proceedings, generally a “summons” served along with a “complaint” (US) or “claim form” (UK), then the court does not have any power over you. However, once you have been served you must respond to the proceedings within the following time:

• US Federal Court: 20 days
• Most US State Courts: 30 days
• English Courts: 14 days from receipt of “particulars of claim” (28 days if you acknowledge that you have been served)
• The parties can stipulate to longer periods of time as long as they tell the court

How do you respond?  You file what is called an “Answer” in the US, or a “Defence” in the UK.  The Answer is governed by Federal Rule of Civil Procedure 12 in US Federal Courts, and the Defence is governed by Rule 16 of UK Civil Procedure Rules (“CPR”).  Each US State Court has its own code section for the response.  In California it is Code of Civil Procedure §431.30.

In US Federal Court and UK Court you must state whether you dispute each claim made, and you must set forth the legal concepts supporting your defenses (called “affirmative defenses”).  For example, you must deny the paragraph in the Complaint that says you infringe the patent, and you must state the related legal defense theory of “non-infringement.”  Affirmative defenses do not require the pleading of specific facts that support the theories.  You only have to tell the other side what theories you have a good faith belief apply.

In contrast, in California State Court, you only have to state a general denial of all claims of the Complaint and your affirmative defenses.  You do not have to affirm or deny each paragraph of the Complaint.

Filing your Defence/Answer is not your only option, however.  Before filing the Defence/Answer you could do the following:

• If you do not think the court has jurisdiction over you, or the subject matter of the case (see my previous post on starting a lawsuit), then in the US, you file a Motion to Quash service.
• If the Complaint or Particulars does not make sense, or is missing a crucial element of the alleged cause of action (again, please see my previous post on starting a lawsuit), you file a Demurrer (California State Court – Ca. Code Civ. Procedure §430.10), Motion to Dismiss (US Federal Court – Fed.R.Civ.P 12(e)), or a Request for Further Information (UK Court – CPR Rule 18.1).  Courts do not like these, but they are commonly used in the US as the first response to learn more about your opponent’s case.
• If the Complaint contains improper material unrelated and unnecessary to the pleading, you file a Motion (“Application” in the UK) to Strike (Fed.R.Civ.P. 12(f), Ca. Code Civ. Procedure §435, or CPR 3.4).  Note that an application for summary judgment may also be made under CPR 24, but this terminates those parts of the claimant’s case that you attack and is therefore difficult to win at the outset of a case (as opposed to simply striking improper material and keeping the rest of the case going).

The foregoing are the most typical responses to a lawsuit from the defensive perspective, but if you want to sue your opponent you may also want to, or be required to, file your own pleading setting forth your grievance against them at the time you file the Answer or Defence.  This is called a Counterclaim (UK & US Federal Court) or Cross-complaint (California).  There are variations on this for suing a co-defendant (Cross-claim), or suing a third party (Third Party Complaint).  Thus, at the outset of the case, you don’t have to be relegated to being on the defensive.  You can also sue back.

In sum, at the outset of a case, you should consider what type of response is appropriate for you, and how it fits into your litigation strategy.