What Responses Can the Defendant Make To the Lawsuit?

After the defendant has been sued and served, they have some time to respond to the case.  Commonly that time is about thirty days. If they do not respond then you can seek a default, locking them out of court and follow up with a default judgment. 

 

If the defendant wants to be heard and fight the case, they have several options.

A defendant can answer the complaint. Typically this takes the form of a denial of the allegations. In addition the defendant can raise various new matters. These are called affirmative defenses.  It is sort of like saying, “the plaintiff is wrong; even if he is not wrong, I still do not owe him because of this other thing.”  And those other things can take many shapes and forms, depending on what the case is about.

A defendant may challenge the legal sufficiency of the complaint. This is an attack on the complaint itself. Commonly the notion is, “even if everything you say is true, you do not have a claim against me.”  In a more lawyerly way of phrasing, the plaintiff fails to state facts sufficient to constitute a cause of action.  So, for example, the court papers may show on their face that the case is too old.  Or maybe it is some new theory of liability which is not well established. Or maybe the plaintiff’s court papers are gibberish.  It happens.

A defendant might file an attack on jurisdiction. So, without getting into the right or wrong of anything, the defendant wants to fight about where to fight. This can make a big difference with respect to convenience, home town advantage, what law to apply, etc.  

A defendant might respond by attacking the serve. Was the defendant served or served properly?  This is an unusual move to make. Sometimes it is appropriate. But a defective serve can often be corrected by re-serving the papers. This will be far cheaper than filing the motion to attack the serve. So this kind of battle can be expensive and little advantage is obtained through it.

If you need to sue someone or have been sued, you should hire a competent attorney to handle the case appropriately.

What Happens After The Lawsuit Is Served?

After the lawsuit papers are served, the defendant has formal notice of the case and needs to decide what they are going to do.  Will they fight the case?  Will they lawyer-up? Will they settle?  Will they ignore it and suffer a default judgment?  If the lawsuit papers or a later served statement of damages do not say how much the plaintiff is suing for then a default judgment may not even be available.   This goes back to the concept of notice and a hearing.  If the defendant does not know how much they are being sued for then it would be unfair to tag them with a money judgment.  This does not apply in smaller size cases.

This is not to suggest that ignoring a lawsuit under any circumstances is a good idea.  To the contrary, defaulting in a civil case is a very dangerous thing to do.  You are then locked out of the proceeding.  What happens from there is without your input.  You lose the right to be heard or participate.  You cannot put on a defense.  You cannot attack the other side’s evidence, legal presentation, or claims for recovery.  You are not even in a position to critique their math.  Failing to timely respond to a lawsuit is rarely a good idea.

Assuming the defendant fails to timely respond, the plaintiff can take a default against the defendant.  This basically locks the defendant out of court.  The plaintiff can then make a one-sided presentation to the court regarding the plaintiff’s case.  Without any opposition you can imagine that the plaintiff has a high likelihood of success.  And the plaintiff will probably have a judgment entered as requested.

A defaulting defendant might be able to set aside a default or default judgment.  The defendant might be able to have the case re-opened.  But the defendant will be arguing about whether or not the case should be re-opened instead of arguing about who is right or wrong.  Talk about being behind on things.  And the request to re-open the case may be denied. 

So after the lawsuit papers are served, the defendant will need to decide if and how to respond.  They may attack the legal sufficiency of the case.  They may defend the case.  They may counter-sue.  It depends on the circumstances. 

It is a suspenseful time for plaintiff.