Once You Pick a Fight, Prepare to Get Shit On
I’m a full-time litigator. I help companies and individuals get the justice (or vengeance) that they either deserve or want. I also serve as defense counsel for companies and people who are defendants in lawsuits. What never ceases to amaze me, is how litigants react when the other side punches back.
Filing a lawsuit, at its core, is really just initiating a slew of paperwork. It’s passive-aggressive, it’s distracting and it enriches lawyers, but really just causes stress for those who have real interests at stake.
When someone files a lawsuit on shaky ground, believing that he was wronged but knowing that he likely did something wrong along the way as well, you can bet that the recipient on the other end (aka, the defendant) is going to punch back, and will punch back hard. There’s no such thing as an innocent bystander in most cases, and courts recognize this. There is such a thing as “counter-claims,” which are inherently vehicles that help the defendant gain leverage in a process that is generally plaintiff-oriented.
The purpose of this article is to serve mostly a warning to all would-be litigants. I have many clients currently and have had many in the past. I’ve been a plaintiff and defendant in litigation. I know a lot about litigation strategy because I’ve lived and breathed it.
Here are my top three tips for all Defendants who have been named in lawsuits:
- Don’t panic. Getting named as a party in civil litigation is annoying, but it shouldn’t freak you out. It could harm you reputationally, so be prepared to address the litigation with a few talking points. However, it’s not the end of the world. Civil litigation does not mean that someone is going to throw you in jail or prison. Civil litigation can be filed by anyone, and can even be totally bogus. So the main message is: do not freak out.
- Hire a lawyer that is affordable, but that isn’t complete garbage. Lawyers are in their line of business to a) help people and b) make money. Some lawyers are in the business to just make money, and if you’re low on resources, this isn’t the lawyer that you’ll want to choose. A lot of lawyers work on a sliding scale, or if you have a lawyer who is your friend, he will be more likely to represent you at a lower rate. However, litigation is time-consuming. Your lawyer will need to be compensated. Talk to your lawyer up front about your resources and hear them out about how they will try to keep costs low.
- Go on the offense. Litigation does not need to be one-sided. Think about your relationship with the plaintiff and understand whether plaintiff actually wronged you at some point. If you were in business with plaintiff, there is likely a point in time when you just “let something go.” If a state of limitations has not passed, don’t let that “something” go. This is your financial life and reputation at stake. Don’t be afraid to fight back.
In a nutshell, getting sued isn’t fun, but it’s not the end of the world. If you get sued, rather than a business, you might be able to represent yourself if you’re truly under-resourced. Some courts offer pro bono appointments, in which lawyers might have to be assigned to take your case for free. Also, you can always reach out to the other side and see what it is what plaintiff wants. If plaintiff has a reasonable lawyer, he or she may be able to negotiate a settlement that all parties can live with.