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Len Watkins
Joshua Genser
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Offices
in Point Richmond and Emeryville
125 Park Place, Suite 210
Point Richmond, CA 94801
Phone: 510-237-6916
Fax: 510-236-9851
2200 Powell Street, Suite 890
The Watergate Office Towers
Emeryville, CA 94608
Phone: 510-237-6916
Fax: 510-236-9851
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So,
You're Being Sued?
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You
know you are being sued when you are served with two
documents: one called a "Summons," and the other called the "Complaint." The Summons simply says that you are being sued and contains some information
about how to respond. The Complaint sets forth the
facts upon which the person suing you, the "plaintiff," bases his or her claim.
Being served means that the Summons and Complaint were delivered
to you. Proper service means that delivery was made by personally
handing the documents to you, or that they were handed to someone
in your office or at your house and then mailed to you. Don’t ignore
the lawsuit just because you believe that service was improper. The
person suing you, the plaintiff might not agree that service was
improper and might get a judgment against you.
You usually have thirty days from the day you were served with the
Summons and Complaint to file your response to the lawsuit. However,
in some lawsuits, such as evictions, that time period may be much
shorter, as little as five days. Don’t take any chances with these
deadlines!
If you do nothing after you have been served with the Summons and
Complaint, the plaintiff will almost certainly get a judgment against
you, called a "default." It
won’t matter whether the judgment is justified; if you don’t defend
yourself you are at the plaintiff’s mercy.
Go see a lawyer immediately! Hiring a lawyer to represent you in
the defense of the lawsuit will certainly be expensive, but not as
expensive as would be a judgment against you.
Can you get your attorneys’ fees back from the other side if you
win? Usually not. The losing side must pay attorneys' fees only where
there is a law that requires the loser to pay attorneys' fees in
a particular type of case or where there is a contract between the
parties that provides that the loser in a lawsuit between the two
must pay attorneys’ fees.
If you really think you can’t afford a lawyer, even for a half-hour
consultation, then you should file a response to the lawsuit called
an "Answer." You
can obtain forms for filing an Answer from the Court Clerk’s office,
at any law library, at many public libraries, and at many office
supply stores. You must fill out the form, sign it, and file it with
the clerk of the court in which the lawsuit against you has been
filed. You must also send a copy to the plaintiff’s attorney if there
is one, or to the plaintiff if there is no attorney.
You have an absolute legal right to represent yourself in a lawsuit
without hiring an attorney. The problem is that you probably don’t
know the rules and you don’t speak the language of judges and court
clerks. If you represent yourself you are expected to follow the
same rules as the lawyers follow.
After you file your Answer comes the most difficult and expensive
part of litigation, "Discovery." Discovery
is the process by which the plaintiff and the defendant try to learn
about each other’s case. There are, generally, three vehicles for
discovery: |
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Interrogatories,
which are questions that must be answered under
oath. |
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Document
Production. Each party may insist on seeing any
relevant documents in the possession of the other. |
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Depositions,
which are interviews of parties and witnesses.
Such interviews are conducted while the witness
is sworn to tell the truth, and are recorded
stenographically as well as, sometimes, by videotape.
Each deposition lasts at least two hours, but
in a complicated case may take days. |
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All
during this period, either party may make "Motions." Motions are requests that the Court intervene in the lawsuit in some manner,
usually by ordering the other side to do something.
Each time a motion is made, you or your attorney, if
you have one, must draft written opposition and appear
before the judge to argue its merits.
After the Discovery process is complete, the Court will require that
the parties try a process called Alternative Dispute Resolution.
That is, the parties must make attempts to settle the case. Such
attempts may include mediation, in which a neutral person is brought
in to attempt to get the parties to agree on a settlement, and arbitration,
in which a neutral person is brought in to render an opinion as to
who should win and how much.
If the case doesn’t settle, then it must be tried. A trial can be
by jury or by judge. Only if both parties waive the right to a jury
trial can the trial proceed before only a judge.
Most of all, remember that you might lose! No matter how just you
feel, there is substantial risk that you might not win. That risk
is a lot higher if you don’t have a lawyer.
The attorneys of Genser & Watkins
LLP have been trial attorneys since 1983. They have represented business,
both large and small, and individuals in State and Federal Courts
throughout California. Call 510-237-6916 and make an appointment.
You will be charged for the initial consultation as well as for any
subsequent work he does for you, but, remember, free advice is worth
what you pay for it. |
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