BY PATRICK O’BRIEN
Each year, millions of lawsuits are filed, many against small businesses like yours. While most never make it to court, there is plenty of anxiety about the process. To avoid the stress that comes with being sued, you should understand the structure of a lawsuit, as well as the steps to take when you and/or your company are involved in litigation, so you can keep a level head if you’re faced with the possibility of going to court.
Litigation generally occurs because a dispute between two or more people cannot be worked out. Lawyers are usually hired to draft a complaint and a lawsuit ensues.
The primary document in a lawsuit is the complaint, which explains to the court what happened, why the facts show liability on the defendant’s part, and information regarding damages. Once the complaint is filed with the court, a summons will be issued. Following this, the official summons and complaint are served on the defendants by process servers.
When the complaint is served at your house or business, it is often the first notice you have that you are being sued. Let’s say you’re dealing with the aftermath of a vehicle accident. The first thing to do is inform your insurance broker and attorney of the lawsuit. Instruct the broker to tender the defense of the matter, or send the lawsuit to your insurance carriers and request they handle it pursuant to your policy, even if he or she doesn’t believe there is coverage. In most states, an insurance company must defend you if there is “any possibility” of a covered claim. Thus, even where it is extremely unlikely the company would have to pay the judgment, they may still have a duty to defend. Attorney’s fees are often the most expensive part of the lawsuit, so even a defense is a huge expense.
Instruct your attorney to stay on your insurance company to ensure they are properly handling the claim. You’ll also want to mandate that none of your employees speak to anyone (customers, media, family members) about the lawsuit. You, too, should not discuss the matter with anyone, including opposing counsel who may call you before you are represented. This is extremely important.
Assuming the insurance company accepts the tender of the lawsuit, they will refer the matter to a competent lawyer to handle it. The company will pay the bills and usually has the authority to settle it or not settle out of court. Your duty under your insurance policy is to cooperate. This means when the insurance lawyer asks you for documents or assistance, you are required to help them out. If you fail to cooperate with your insurance company—or their lawyer—they may pull coverage, so be responsive.
Your attorney will file an answer to the complaint on your behalf, and then serve the plaintiff written questions about their contentions and injuries. This is called discovery. Likewise, the plaintiff will serve you with discovery, which your attorney will help you answer. Get involved and be complete with your answers since this is your chance to tell your story. Provide your attorney with any witnesses or documents you have to help your case, including photos and video. Make sure your lawyer knows how responsibly you run your operation by providing him with training manuals and appropriate documentation.
Some people incorrectly think that once the case is tendered and the insurance company is defending you, it becomes solely the insurance company’s problem. Your insurance standing and your rates depend on the outcome of the litigation. The more you do to assist the insurer to win the case or minimize payments, the better off you will be.
After written discovery has been answered, both attorneys will likely take depositions, where they ask questions of people in person. This session will be recorded by a court reporter and is sometimes videotaped. The witness is then sworn in and testimony is under oath, just like a trial.
Be ready to give good answers and describe in depth all the things you do for safety."
Before your deposition, your lawyer should meet with you to prepare. Know the facts and what you want to get across to defend yourself. Find out if you will be asked about training, maintenance, and policies. Be ready to give good answers and describe in depth all the things you do for safety. Include that you watch your chauffeurs, ride with them, and ensure that they are competent drivers. These facts are important, even if you don’t document them, and will help your case.
During the deposition, try to not volunteer any unnecessary information, simply answer the questions you are being asked. If they don’t ask the right question, they don’t get the information. Remember, the person asking you questions is not your friend: They are an attorney who is trying to prove that your company is a bad actor, and that you should pay their client a significant amount of money. It doesn’t matter how nice they are; their sole motivation is winning for their client. Don’t do opposing counsel any favors.
After discovery is done, many times a lawsuit will proceed to some sort of settlement conference. You may be asked to attend, but, if the case is insured, your insurance company will have the authority to settle the matter. Generally, it is in your interest for the case to settle. This will save you time, and also foreclose any risk that a judgment is entered against you or your company. If you are asked to contribute money, or have questions, talk to your personal lawyer. If, at any time, your insurance attorney tells you there is a risk of an “excess judgement” or that there are uninsured claims, this means your personal assets are at risk. In such a case you should always hire your own lawyer. Your personal lawyer may be able to work with the insurance company to settle the case, extinguishing any personal exposure to you. Examples of this are when the injuries are very severe and the judgment could exceed your policy limit, or when you are sued for punitive damages, which are usually not covered by insurance policies.
For whatever reason, if the case doesn’t settle, you will ultimately go to trial. You or your representative will likely be asked to attend the trial, which could mean sitting in a courthouse eight hours a day for several weeks. Listen to your lawyer: Show up to court in appropriate attire, be calm, and don’t make faces or mumble. Be extremely respectful to the judge and jury. The jury watches everything. They will see you fidgeting or changing expression, and interpret these as signs of guilt. The jury is there to decide the truth, but they are human with human prejudices and predispositions. Don’t give them any reason to dislike you.
When you testify in court, look at the jury when answering. Eye contact says “I am telling the truth,” while breaking eye contact says “I am hiding something.” Try to be calm and tell your story in a way the jury can understand. Your attorney will prepare you for this stressful experience. Again, preparation usually leads to success and to the ability to stay calm.
At the end of the trial, the jury will decide who won and how much is to be paid. Assuming you had insurance, the insurance company will either pay or instruct its attorney to file an appeal.
Depending on your state, the appeal process can take a few months, or it can last for years. Try not to let the case consume your life or your time. Assist your attorney when asked, but otherwise proceed with your business. Ninety-five percent of all cases settle, so it may be that your case will start and finish with you having to do nothing.
My first mentor told me “Don’t stress, these cases always work out.” In the vast majority of cases, the matter resolves with little impact to the defendant’s life or business. Listening to and assisting your lawyer and staying calm will all increase your chances of your case resolving in a timely and reasonable manner. [CD1116]
Patrick O’Brien was the Owner of and is currently on the board of Panama Luxury Limousine in Panama City, Panama, and a Managing Partner of law firm O’Brien & associates. He can be reached at patrick@pobrienlaw.com.