How to Protect Your Interests As a Defendant

I’ve been named as a defendant in a civil lawsuit. What should I do to protect my interests?

A vast majority of people go their entire lives without ever being named as a defendant in a civil lawsuit.  Others, though, are not so fortunate.  If you should happen to find yourself on the receiving end of a lawsuit, there are a few immediate steps that you should take to protect your legal interests.

The emphasis here is on “immediate” because lawsuits are time sensitive manners.  Lawsuits brought in New York State Supreme Court are commenced by filing with the Court Clerk a Summons and either a Complaint or Notice, which are then served on the defendant parties.  The Summons advises the defendant of his or her time to formally “appear” in the action, typically by serving an Answer.  The time for the defendant party to appear is either twenty days or thirty days, depending on how the papers were served.   If the defendant fails to appear within the time provided, he or she will be considered to be in default.  A default in appearing is tantamount to admitting the allegations in the lawsuit and entitles the plaintiff to apply for entry of a default judgment against the defendant.  While there is a process available by which a Court may relieve a defendant of his or her default in appearing where there exists a reasonable excuse for the delay and a meritorious defense to the action, the better course is to simply avoid the default in the first instance.

Check Your Insurance Policies

If you are insured under one or more liability insurance policies, the first step is to provide notice of the lawsuit to the insurance carriers.  Subject to deductible amounts and coverage limits, liability insurance policies generally obligate the insurer to appoint counsel to defend claims covered under the policy, to pay for the costs of defense, and to indemnify the insured for any damages for which he or she may be legally liable.  Whether insurance coverage exists, of course, depends on whether the claim or claims raised in the lawsuit are covered under the terms of the policy.  In some cases, it may be unclear whether the claims are or are not covered by liability insurance policies.  In such instances, it is best to err on the side of caution and provide notice of the lawsuit to all insurance carriers – at best, you may be pleasantly surprised to find that coverage exists, and at worst the carriers will simply confirm that no coverage exists.  Most liability insurance policies require the insured to provide timely notice of a lawsuit, and any delay in notice may provide a basis for the company to disclaim coverage.  The only thing worse than not having insurance coverage is to have coverage, but lose it because timely notice of the claim was not provided to the insurer.

Hire an Experienced Attorney

If there is no insurance, or if the liability insurer has disclaimed coverage, the next step is to locate an attorney to represent you in defense of the lawsuit.  The process of selecting and retaining an attorney may take some time.  If you have successfully worked with an attorney in the past on other matters, he or she may be a good starting point.  Even if that attorney does not typically handle litigation matters or the type of claim at issue in your case, he or she may be able to recommend you to another attorney, such as one that handles personal injury cases.  If you haven’t worked with an attorney in the past, family, friends, or coworkers may be able to offer you a recommendation.  You may need to meet with a number of attorneys before finding one that is right for you and your case.  Since most attorneys defend litigation matters on an hourly basis, be prepared to discuss the attorneys’ hourly rate, the projected costs of defense, and how you intend to pay for the attorneys’ services.

Finally, you should take steps to identify and preserve any documents or other information which is relevant to the claims at issue in the lawsuit.  The types of information you should locate and save will vary depending on the nature of the case but may include copies of contracts, invoices and billing statements, letters and e-mails, photographs, and/or accident reports, by way of example.  Having these materials organized and ready will assist your attorney in becoming familiar with your case and planning a defense, and will ensure that they are not inadvertently lost or destroyed.

Have you been named in a personal injury case? Our personal injury lawyers offer free, confidential consultations so you can learn more about how we can protect your interests. Get in touch with us today.