Tuesday, 8 March 2016

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.

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