The Legal System – What to do if You Get Sued – Part 2

Disclaimer – This is Not Intended as legal advice, just general information. You should consult a lawyer for advice specific to your legal situation.

The Legal System!

Basic Complaints and Answers

If you read the papers you will notice that they will either specify that you must file an answer or show up to court on a certain day. You answer by filing a written document that indicates generally your response to the allegations in the papers. Some small claims courts will have expedited procedures that don’t require written responses.

Law has undergone a strong modern trend towards minimizing technicalities. This has led to a minimization of the importance of the complaint and answer. If you read a complete or answer and are like “wait that says I’m not liable” or some other eureka moment don’t get excited. It almost certainly won’t matter and at worse most of the time the other party would have to make edits and submit an amended version. Note that complaints and answers usually aren’t sworn too and thus don’t count as evidence. A complaint that has been sworn to is called a “verified” complaint and is usually used when a temporary order called an injunction is sought at the start of a lawsuit.

Some lawyers craft intricate answers which I personally think is bad practice as there’s no real advantage and you might give some strategic detail away. When I see one it’s usually from a large firm and I deeply suspect a couple hours of billables.

The main function of a complaint is to let the court and party being sued know what’s going on. The answer’s function is to let the court know that there will be an active defense. If you want a jury trial you’ll need to ask for one in your answer. It’s best not to read too much into this stage of the process.

Also, don’t freak out because the other side asks for a million dollars. There’s an old rule that says you can’t get more than you ask for so lawyers always put an absurdly high figure just in case to avoid potential malpractice.

Summary Judgment

If you are just defending a lawsuit then summary judgment might be your favorite stage of the entire lawsuit. Basically it’s a one shot deal where you can argue that even if all facts alleged by the opposing side were taken at their face value then you’d still win.

Summary judgments can be won either by showing evidence produced by the other side that rebuts their own claims. Another frequent winning tactic is disallowing a witness for other side that is needed to prove an essential element of their claim. Expert witnesses are frequently disqualified in this manner since there’s a far stricter standard on when their testimony is allowable.

Even if you win on summary judgment it’s always possible that the other side might be allowed to go get additional evidence even if there’s no time left in a scheduling order for additional discovery. This is largely a matter of local practice. Therefore in some courts a lawyer might purposefully delay a solid summary judgment motion until as late as possible in order to maximize the possibility a case would actually be dismissed.

Settlement and Mediation

It’s tempting to put settlement as a separate stage of litigation. There’s a modern trend towards treating settlement as a specific phase where you sit down with a dedicated individual who tries to facilitate the discussion called a mediator.

However, in reality settlement can occur at any point in litigation, from before a complaint filed to after a verdict. Traditionally, both attorneys communicate pretty much constantly during a process to feel each other out to see if a settlement might be possible. If you aren’t being represented by counsel you can expect much less in the way of settlement discussions with many counsel because of a perception that many pro se litigants are slightly deranged and difficult to deal with as well as ethical difficulties of being perceived as aiding the other side. If you are representing yourself and want to see if settlement might be possible just bring it up in an offhand manner and see what comes up.

At to negotiating generally, it’s best quite to be as much as non-verbal an asshole as possible in negotiations. There’s a gigantic tendency to split whatever two parties are at by both parties and mediators. So if a reasonable range is say 1800-2200 and you offer $2400 and the other side $1 it will be a rare mediator who’ll suggest even the bottom end of a reasonable range and not just a split. The only exception is when the other side is close to where you want to be, then it’s okay to push for a close and to be reasonable.

Time is also very important in legal negotiations. Unlike business dealings where there’s an incentive to get things done, in most legal negotiations there’s no real hurry. It’s not unheard of for parties to raise their offer on what will seem like a set schedule of a couple weeks. If you can not panic and hold it together as well, it’s also a very frequent occurence that the other side will decide they just want it over with and suddenly accept a great offer. This very frequently will occur near the time discovery is due. (Or in family law when a party starts getting serious with a new significant other.)

Once you’ve reached an agreement then you’ll need to get it typed up and signed by all relevant parties as quickly as possible. It’s a bad idea to engage in any frank after action discussions ever generally, but at a very minimum If there’s a minor involved it will have to be signed by a judge as well.


Business people meeting at office

Business people meeting at office

Mediation is a formal step where both parties site down with a neutral third party and try to arrive at a resolution. It’s highly touted as a big thing lately and many courts may order you to do it. Mediation can take an absurdly long time as it’s a common strategy to drag out counteroffers with extended discussions. This can disadvantage the less financially able party both unintentionally and as a common tactic among big litigants. There’s also a tendency for lawyers to skip the often very effective direct lawyer to lawyer feeling out settlement process when there’s a formal mediation on the table.

While you need to try to let things work out and give the other party the benefit of the doubt if they’re taking an hour conference between position changes, you also need to not be afraid to walk out to save money. Just because a mediation ends doesn’t mean the settlement process is over. Frequently, the mediations will set a tone for the lawyer-lawyer discussions that will result in a settlement.

Before mediation you will need to pick a mediator. This can be tricky. Certain mediators can tend to favor bigger litigants who tend to be represented by bigger firms who would provide repeat business. I also think there’s a strong tendency to subconsciously try to align yourself with the most prestigious party. I find going with slightly pudgy mediators or those who’ve worked for a non-profit can work as they tend to be less status conscious.

Smaller courts may have volunteer mediator programs so you might not have to worry about this. If you are represented by a lawyer it’s not an especially tricky issue, but it is serious so you lawyer should discuss it with you.

If you happen to get an obviously biased or really clueless mediator then try to have a productive discussion but don’t conceed anything if you aren’t 100% sure.


Arbitration is usually mentioned in the same breath as mediation, but it’s actually much different. The arbitrator will actually decide the case unlike a mediator. Basically, an arbitrator is a third party judge hired by the parties to decide the case outside the standard judicial process.

There will usually be extremely abbreviated rules as to discovery and witnesses, especially experts.

Be very careful in hiring arbitrators. Make sure to find out how often that arbitrator has arbitrated cases with opposing counsel or their firm. It can even make sense to hire someone out of area to arbitrate larger cases.

The most common reason for arbitration is a contract calling for it in the event of dispute. Parties can usually also agree to arbitration which they might do for reasons of speed, privacy (arbitrations aren’t public record), or other concerns.

Decisions of arbitrators will usually have limited appeals usually just for reasons like clear bias or lack of effective agreement to arbitrate. The decisions can usually be enforced like court decrees and enrolled in a local court for enforcement.


Discovery is a formal process where each side gets to ask about what facts the facts are. There are two primary categories of discovery. Written discovery and depositions.

Written Discovery

Libri, contratto e codici per avvocato

Written discovery consists of interrogatories, request for production, and requests for admissions.

Interrogatories are a list of questions that must be answered and signed. The answers can usually be used in court so be careful. There will probably be an intricate set of instructions on top basically designed to prevent some sort of dimwitted interpretation of a question that allows a useless answers. (Who is Jim Gallant? A. Some guy.) Don’t let them freak you out as long as you give a legitimate attempt it should be okay.

There will usually be a limit of twenty to thirty questions depending on the court.

Requests for production are requests for evidence in a party’s possession or control. The rules will generally just specify that you have to make them available for inspection at a certain period of time. In practice the tradition for small amounts of discovery is to just make copies and send them. This eliminates the hassle in setting up meetings. The next level is to ask for copy costs if there are a large number of documents.

If you are a company or institution it’s possible that your hard drive will need to be stripped and sorted through by attorneys in sort of a legal sweatshop type deal. If you are in this category it’s possible the other side will want to effectively deprive you of access to your machines. Say no if this will cause you significant damages and make your lawyer litigate it if necessary. It should be possible for a consultant to come in after hours and get it done.

If you don’t have access to a document then don’t freak out. Just indicate you made a search or request for it.

Note that possession or control also includes documents you’ve obtained from other sources.

For both interogatories and request for production of documents leave a decision as to turning something over to your attorney after consultation. If there’s a potential issue segregate it somehow. Likewise if you represent yourself I’d encourage you to get everything together before making decisions as to if you can turn it over.

Discovery will be an area where you will need to work closely with your attorney and it’s perfectly natural to consult on a daily basis while you’re trying to get it done. The time limits will be tight and it’s a big portion of the case.

Request for Admissions – Requests for admissions are a new discovery device. Basically they are a set of facts that you ask the other side to admit or deny. If a party doesn’t respond in thirty days then the facts will be taken as admitted.

Facts that are admitted can be taken as established for purposes of the trial in most courts. There may be a slim chance to undo a problem with a unintentional or inadvertant admission but don’t count on it. Request for admissions have inherited much of the role of that complaints and answers used to play in framing cases.

If something is denied that a party must bear some expense to prove then theoritically the side that denied it should be ordered to pay the expense. However, like all sanctionish fee and expense shifting in American courts I feel this rule is mainly honored in breach.


If you are representing yourself, then I’d expect depositions to be the most intimidating part of the entire process. Depositions are considerably more informal then court with attorneys showing up in jeans.

This informality combined with the lack of a judge present can make depositions a very trying affair.

There used to be a problem with attorneys making frivolous objections and instructing clients not to answer during depositions. So rules were passed establishing fairly severe penalties for these instructions unless it was to preserve a privilege such as self-incrimination or attorney client confidentiality. If you believed an attorney was being abusive in their questioning then the only recourse was to suspend the deposition and file a motion for a protective order with the court.

This seems acceptable if highly inefficient until you realize that if the court doesn’t grant your motion then you could be liable for costs associated with the protective order and suspending the depositions. (Including those expensive court reporters.)

It’s standard practice to reserve all objections except as to form and privileges in a deposition. If objections are not reserved then they will be made on record, but the person being deposed must still answer the question even if it was leading, ambiguous, misconstrued prior evidence etc. Then technically the answer will be disallowed at trial if the objection was valid. However, as a practical matter for settlement and other purposes it can be difficult to make like the answer never happened. While you can object before trial you might not think an answer would be relevant and then the attorney will get to flash it on the display in front of a juror before you can get an objection in.

This makes being deposed a difficult and scary proposition if the opposing lawyer is a jackass. To combat it lawyers can engage in a difficult dance of objections which can slow the other lawyer down and law the ground work for disallowing the answers.

Since few objection are allowed the best method is good witness preparation where the witness stays very calm and doesn’t get tripped up.


A court of record is one where a court clerk or court reporter will take down a record of what transpired during a court hearing. This record, along with written submissions and filed documents, will be what an appellate court will review during any potential appeal.


Traditionally, a court reporter would be employed and parties would split the cost of the reporter. If you didn’t split the costs it’s possible the record would not be available. Many courts are moving to having an audio record that parties can pay to have transcribed if needed at a later date.

Attorney and court reporter going over a trial transcript at the courthouse.

Attorney and court reporter going over a trial transcript at the courthouse.

If a record was not available there are semi-archaic procedures where the trial judge could approve a summary of proceedings that might be useable in your state. If you are in a court of record then you need to ask about a recording if you think you might want to appeal an adverse decision. If you are representing yourself you might to need to arrange for a reporter yourself and some lawyers won’t get one as a matter of course except with high dollar cases. (Reporters can be expensive and take away money from the amount available to pay the attorney.)



Judge using his gavel

Trial is the part of law that actually sort of resembles TV. It’s not especially hard to understand. The side prosecuting the case will present their witnesses and evidence. Then the defense will present their evidence. Then the prosecution will get a chance to rebut the defense case by presenting evidence that shows what the defense presented is inaccurate.

At the close of the prosecutions case there will be an opportunity for the defense to move for a summary judgment.

Trial testimony follows a fairly strict order with one side asking questions and then another side asking their own. You cannot skip this order even if the testimony upsets you. Vocalization of disbelief at testimony or even making disgusted faces can lead to sanctions by the judge including contempt with possible jail terms, though it’s more likely that a judge would direct a verdict against the offending party. Trying to talk to jurors can also lead to sanctions and jail time as well.

At the end a jury will go back in a room and deliberate. When they’re done they’ll come out and deliver their verdict. A lawyer might ask for the jurors to be asked individually if they agree with the verdict, but this may not happen and rarely changes anything.


You can appeal a trial court’s judgment in a set period ttime (usually 30 days) after a final judgment is entered. Usually this will be calculated from the entry of judgment which may be awhile after a trial.

In some rare case it might be possible to appeal a non-final judgment.

An appeal will only deal with issues and evidence presented at the trial. Generally, there are two types of issues that may be addressed.

Issues of Law – These are issues like the judge ruling a witness saying what a party said was hearsay when there’s an exception that a party opponent’s statement are an exception to the hearsay rule. Granting or denials of summary judgments generally fall under issues of law.

Issues of law are the best issues to appeal since appellate courts will generally give little or no deference to the trial court on those matters.

Issues of Fact – These are issues like did someone intend to punch someone in the face or were they just stretching and the other party ran into it. Generally these sorts of issues must be decided in a clearly erroneous manner in order to be reversed. Note it must be clearly erroneous on the record so if a witness was making funny faces while testifying and obviously making things up then you’re out of luck.

If an issue was tried by a judge as opposed to a jury then a slightly lesser standard much might be used, but an issue of fact will always get a great deal of deference from a trial court.

The first step to deciding whether to appeal should be discussing the issue with your trial counsel. If you are representing yourself then you need to get the transcript of the record prepared as soon as possible and consult with an attorney who does civil appeals. Given the time limits involved you may need to go ahead and file a notice of appeal. Even if you intend to represent yourself on appeal I’d highly suggest at least a consultation to get you started in the right direction. The more of the record an attorney can review prior to a consult the better they’d be able to advise you. Appeals are one of the more highly technical areas of law and getting the record transmitted to the appellate court can be highly involved.

Experience in appeals is a tricky thing. Probably the majority of modern attorneys will go their careers without doing a civil appeal. It is however a core basic skill of law school so saving money by hiring an inexperienced lawyer can be a good strategy. Also the amount of work in appeals is very predictable so usually most attorneys can quote based on the length of the trial record, so there can be opportunities to shop around.

Also, in most states an Appeal will not stay (legal word for temporarily stop) collection actions related to a judgment. To do that you will need to post a bond with the clerk of the court that issued the judgment.

You Won Now What?

Businesswoman with two fingers or victory gesture

Not much actually. If you win as a defendant the other side will be ordered to pay the court costs which in all likelihood were prepaid. They may include costs such as copying, parking, and expert fees that you incur but will not include attorneys fees. The good news is that court costs will generally be collected by the court so you don’t need to concern yourself with it.

Any issue litigated in the trial and demonstrable in the record will be considered res judicata or already litigated. This is the civil version of double jeopardy and will mean at it’s most basic that you can’t be sued again for the same reason.

You lost now what?

If you lose a lawsuit then the judge will enter an order outlining what you are supposed to do. This is called a judgement if it involves money or a permanent injunction if it involves a permanent order not to engage in certain conduct.

If you have a judgment against you it means a court has determined that you owe a certain amount of money to another party. Judgements can be bought and sold so you might find yourself facing a demand for payment from someone you never heard of. If this happens make sure you verify that they really own the judgment before you pay it. It’s best to pay the judgment through the court clerk if this is allowed.

If you don’t pay the judgement it doesn’t mean the party holding the judgement owns you. It does allow them to call upon certain enforcement mechanisms to try to collect the judgement.

Garnishing a paycheck probably constitutes the most common enforcement mechanism.

The vast majority of civil judgments will be dischargeable in bankruptcy unless their was a finding of a special circumstance rendering the judgment non-dischargeable.

Your state will also probably have a statue with assets that are exempt from collection. To avail yourself of this you will probably need to file some sort of statement of which assets you are claiming as exempt at the courthouse where your judgment was at. If you were represented by an attorney see if you can guilt them into doing this for free for you since they lost your case.

Can you go to jail?

Going to jail for not paying civil judgment is extremely uncommon and really shouldn’t happen since a variety of laws and legal decisions have outlawed the practice. However, it’s technically possible for a small variety of family law related debts, some court cost, and possibly debts due to fraud.

However, someone who has a judgment against you will generally be able to have a court order that you appear at court for questioning about any assets you might have. A judge may hold you in contempt if you don’t appear and send you to jail for that.

If you are the subject of a permanent order not to do something then it’s possible to go to jail for contempt.


I hope this book answers some question and acts as a good start for dealing with the legal system. If you aren’t a lawyer I really encourage you to at least have a consult with one. However, even if you are going to represent yourself then I hope this book gets you started off on the right foot.


Right Foot

Right Foot