If your company has just been sued, it’s natural to feel angry. However, letting your emotions take control of your actions can make it difficult to do what’s necessary to prepare for the lawsuit.
“Litigation, whether it is in state or federal court, is deadline-driven,” says Loriann E. Fuhrer, director with Kegler, Brown, Hill & Ritter. “In Ohio, the Senate has just 28 days to file and answer, in federal court they might have as little as 21 days.”
With fairly short deadlines for filing a response to the complaint, it’s important to get a trial lawyer involved as soon as you receive a complaint, adds Fuhrer.
Smart Business spoke with Fuhrer about how to prepare for a lawsuit.
What are the steps companies should take after being served with a lawsuit?
The first step is to get a competent trial attorney involved. Some companies have some sense that a lawsuit is imminent. In those instances, you should get your trial lawyer involved when you have some reason to believe that a lawsuit may occur. Nothing needs to happen overnight, but you don’t have a lot of time before something needs to happen.
If the company has never been sued before and doesn’t have a regular trial attorney, they should look for lawyers that are experienced in handling similar cases. Experience in handling similar cases in the court in which the case is pending is important, as well, because there can be some differences between state and federal court.
Who else needs to get involved?
It’s important to keep discussions of the lawsuit to a minimum until counsel is engaged. This is especially true with people outside the company, but also with people inside the company who don’t need to be involved.
This is important because those discussions may be discoverable by the opposing party. So a company can create additional and unintentional witnesses by discussing the case with people who were not involved in the underlying facts in the first place.
What mistakes do companies often make?
Many companies underestimate the importance of preserving documents. Document collection and preservation issues are really important to pay attention to at the outset of a lawsuit. The civil rules place an obligation on parties to preserve evidence that might arguably be relevant to the lawsuit.
That duty can arise even before the lawsuit is filed. If you have a reason to know that future litigation is likely, and if the documents are likely to be relevant to that future litigation, the duty to preserve them can arise even before the lawsuit is filed. Certainly once a lawsuit is filed you have notice of it.
