If you’ve been sued:
No action may be taken against you, until you have been served
You have a deadline to file an answer to the lawsuit, or appear in court
You may settle with the plaintiff at any time.
Being sued is one of the most stressful situations in which you may find yourself. If you have been sued, you are likely wondering: What can I do? What is going to happen?
If you have been sued, the person or entity suing you is the plaintiff. You are the defendant.
If you have been sued, then, in general, neither the plaintiff, nor the judge, may take action against you before you have been properly served with notice of the lawsuit. The U.S. Constitution says that no state may “deprive any person of life, liberty, or property, without due process of law” Courts have interpreted this provision to say that you must be given proper notice, and an opportunity to defend yourself, before your property or liberty may be taken.
(There is an exception to this rule. If you have concealed yourself to avoid service, or if you have hidden or about to hide your property to defraud creditors, the plaintiff may ask the judge to allow “prejudgment attachment.” If the judge allows prejudgment attachment, the sheriff may take custody of your property before you are served, and you must have a surety post bond for you in order to recover the property.)
Oklahoma law allows a plaintiff to serve notice on you in the following four ways:
1. Personal Delivery: Either the sheriff, or a licensed process server, delivers notice to you personally. The sheriff or process server may also deliver the notice to your home, and leave the notice with someone fifteen years old or older, who lives with you.
2. By certified mail to your residence.
3. If the Plaintiff can’t serve you by personal delivery or certified mail, the plaintiff may ask the court to allow him to serve you “in a manner which is reasonably calculated to give … actual notice” to you.
4. By publication. The Plaintiff must publish notice of the lawsuit once a week for three consecutive weeks, in a newspaper in the county in which the lawsuit is filed. The Plaintiff must ask the court for permission to serve you by publication, and the plaintiff may only serve you by publication if the court finds that the plaintiff cannot serve you in any other way.
When the Plaintiff serves notice on you, the plaintiff notice must contain a summons.
This summons must state:
· The name and address of the plaintiff, or his attorney
· The time limit for you to appear and defend. You usually have 20 days, after being served with the summons, to file a response in court. If you are sued in small claims court, you don’t have to file an answer — you only need to appear in court on the date given in the summons. If you are served by publication, you have to file a response in court within 41 days after the first publication
· That if you do not file a response, or appear in court, within the deadline given in the summons, the plaintiff can ask the judge to grant a default judgment against you, and you will lose the case by default.
Once you are served with a lawsuit, it’s generally a good idea to hire an attorney. You are allowed to represent yourself, but, in an earlier blog post, I explain why representing yourself is not a good idea. (In small claims court, you usually don’t need to hire an attorney, because small claims court is designed to function without an attorney.)
Likely, what your attorney will do first, is file an answer. Your attorney may also file an “Entry of Appearance and Reservation of Time” where he asks the court for more time to file a response. If your request is reasonable (for example, you ask for 20 more days) the court will likely honor the request.
If your deadline for responding is already expired, and the plaintiff has not asked for a default judgment against you, your attorney may still file a response. At this point, you may also ask the judge (or the opposing party) to allow you to file your answer out of time.
If you’ve already passed the deadline for responding, and the court has granted the other party a default judgment against you, then you may ask the judge to overturn the default judgment. If the judge grants your motion to vacate the default judgment, the case proceeds. If you have been served solely by publication, the judge is required to overturn the default judgment, if your attorney files the motion any time within three years after the publication.
Your may also countersue the plaintiff. To do this, you, or your lawyer, will file a counterclaim. If you believe you have a right to countersue the plaintiff, ask your lawyer if this is a good idea.
When you file your answer, you must either admit or deny each accusation in the petition. If there is any accusation that you don’t deny, that accusation will be deemed admitted.
Many people who have watched court television shows think only of trials when they think of going to court. However, studies have shown that the majority of cases settle out of court. At any time before or during the lawsuit, you, or your attorney, may contact the plaintiff and attempt to agree to a settlement or payment plan. You can also agree to a settlement or payment plan even if the court has already granted a judgment against you.
It's a good idea to get an attorney who will try to settle the claim without going to trial. Going to trial is expensive, time consuming, and emotionally draining. When choosing a lawyer, ask if he will try to settle the case without trial. I (and many other lawyers I know) prefer to settle cases out of court. It would be wise at this point to remember the words of Jesus: “Come to terms quickly with your accuser while you are on the way to court with him, or your accuser may hand you over to the judge, and the judge to the guard, and you will be thrown into prison. Truly I tell you, you will never get out until you have paid the last penny.” (Matthew 5:25-26)
One way to settle out of court is through mediation. In mediation, you, and the other party, and your attorneys, meet before a mediator who will try to guide you toward a settlement. The mediator is not like a judge, in that he cannot order either party to do anything. But, a good mediator can convince even very disagreeable parties to settle. To find out more about mediation, click on my blog post here.
If your case doesn’t settle out of court, your case will likely go to trial. At the conclusion of trial, the judge or jury will render a judgment, deciding who (if anyone) is to pay what to whom. If the court grants a judgment against you and you do not pay, you can be ordered to appear at an asset hearing. The plaintiff can obtain possession of certain items of your personal property, and can also garnish your wages — this means that your employer will have to pay a portion of your wages to the plaintiff.
NOTE: This post is about cases in Oklahoma state court. If you have been sued in federal court, the rules of procedure are similar, but they are not identical. Most other states have rules similar to Oklahoma’s, but some states are quite different. When you obtain a lawyer, make sure that the lawyer is licensed to practice in, and has experience in, the jurisdiction where you have been sued. The Persaud Law Office is licensed to practice only in Oklahoma state court.
If you have been sued, then this is a time you need a lawyer – the sooner you get a lawyer, the better. If you would like a consultation with the Persaud Law Office, contact us today.