Being Sued
Defending against a lawsuit
Being sued is a difficult and time consuming process that requires the utmost diligence to avoid damaging financial penalties. If you are the defendant in a lawsuit, you must know your potential legal liability and potential for the damages you will be ordered to pay. There are a few guidelines you should follow when meeting with a litigation defense lawyer, and knowing these guidelines are essential to minimizing damages from a lawsuit, or having the lawsuit thrown out altogether.
Determine the extent of your liability
You must first determine when you are being sued if the plaintiff has a convincing case. There are a number of subjective factors in this determination, many of which involve the pedigree of the plaintiff’s lawyer, plausibility of the other party’s claim your own perceived liability and the jury’s probable sympathy to the plaintiff. The litigation defense lawyer will be critical here from the very start of being sued. You will be able to evaluate the case and determine if you should pay a settlement or fight the lawsuit in court. Know that in many contracts, the plaintiff may have waived the right to sue or have other agreements that will hamper their ability to collect damages. Showing this relationship and knowledge of the potential for damages will limit your liability significantly. Litigation defense lawyers usually offer document revision services, which are essential to preemptively shutting down lawsuits and forcing low settlements.
Should you settle?
Many merit-less lawsuits seek a quick payout from defendants unwilling to bear the expense of going to trial. A protracted legal battle is certainly not attractive, but through consultation with an effective litigation defense lawyer, you can determine if state law or the courts will prevent a merit-less lawsuit from being heard. Tort reform laws have been effective at limiting the liability of defendants and preventing many dubious lawsuits from being heard. On the flipside, the defendant’s lawyer can help you reach a favorable settlement, especially when it becomes clear you may lose as your liability is too great.
Determine if you must deal with litigation
Some disputes can be resolved with alternate dispute resolution. If you are already being sued, it may be too late for this option. If you are anticipating that you may be sued however, preemptively seeking alternative dispute resolution, often offered by lawyers, may be important to preventing a situation from escalating into litigation. Some states may require ADR for some disputes but a determined plaintiff may be able to force a lawsuit, depending on state law. You may opt for settlement rather than face mounting legal expenses in court.
Be organized for the litigation
Mounting an effective defense when being sued hinges on an organized and focused case. In this instance, you will need to bring all arrangements you have with the plaintiff. Depending on the nature of the litigation, you should be able to provide police reports, photographic evidence of the damages and account for key witnesses against the claims made by the plaintiff. Expert witnesses can also debunk the claims made against you, which is critical for swaying the jury. Having all the evidence organized as well as focusing your legal defense is also important in a settlement, as this may convince the plaintiff to avoid going to a costly trial.
Are you helped by tort reform?
Tort reform blocks lawsuits by decreasing length the statute of limitations, capping damages and increasing the burden of proof to collect damages. Some states may force the loser to pay the legal costs of the winner. Small scale defendants in lawsuits are protected from damages in some states by capping their liability at a small percentage of their net worth. This prevents many defendants from financial ruin.
When defending against litigation, tort reform is almost always helpful and you may be able to prevent the lawsuit from ever reaching the courtroom. You may be required to hire an expert witness to cast doubt on the claims made by the plaintiff when you are being sued. This is essential to swaying the jury in your favor. If enough claims are disproved, the lawsuit can even be thrown out.
Controlling the jurisdiction may be important. If there is a jurisdiction that may be unfavorable to you or your counterclaims, you should determine if state law gives you the right to move the jurisdiction or prevent the plaintiff from choosing a favorable jurisdiction rather than a logical or convenient one. Large scale litigation has been the most successful in states that support litigation, even if the legal matter does not concern the state in the slightest.
Other functions of a litigation defense lawyer when being sued
The defense lawyer is valuable at preventing the plaintiff’s lawyer from stacking the jury against you. This will include asking questions to discern juror biases and analyzing statements made by jurors that reflect prejudice against the plaintiff. A perfectly objective jury is next to impossible, but the litigation defense lawyer can help you strive for a more favorable jury if you do not reach a settlement and must go to trial.
What are you going to pay as the defendant?
Unlike those pursuing litigation, who will have the benefit of “no-win, no fee” lawyers, you will be paying for the use of the lawyer’s time and other services. If the litigation defense lawyer requires a retainer, know what will be charged to the retainer, when it will be charged, when you will refill the retainer and if you will have the balance returned when you are no longer being sued. Note the cost of associated legal services, such as document revision and expert services. The litigation defense law firm may or may not offer these services and the affordability may vary.
If you are worried about a high burden from litigation, you may work out a payment plan with the litigation defense law firm, if they are inclined to do so. Enquire about this prior to accepting legal services if you anticipate you will need this flexibility.
