Being on the receiving end of a lawsuit is not a pleasant experience, but you cannot afford to let your emotions dictate your actions. This is not the time to fire off incendiary emails to others about the lawsuit nor should you contact the person who has brought the suit against you. Your goal at this point should be to thoroughly understand your position and gather all the information you can.
Go through the checklist on this page to better understand the
process in front of you. But first, there are two technical terms that
you will need to become fluent with right away: for purposes of the
lawsuit, the person who sued you is called the plaintiff, while you are known as the defendant.
1. Do you have a lawsuit on your hands?
It's important that you understand the papers you've received. While the following is not definitive, most lawsuits contain the following attributes:
- a court location is listed at the top of the first page, i.e. the "United States District Court for the Northern District of California" or the "State of Rhode Island, Providence, S.C., Superior Court"
- two columns right after the heading which are separated by a vertical line made of ")" or ":" characters.
- your name in the left column, listed after the "v."
- the word "Complaint", or "Petition" in the right column or in the title immediately following the end of the two columns.
If none of these features are present you may be in possession of a different type of legal document—check our sections on Responding to Correspondence Threatening Legal Action and Responding to Subpoenas for help in determining what you received.
If the features described above apply, you have received a complaint, which is a legal document initiating a legal action and explaining the reason for the lawsuit. Accompanying the complaint should be a summons, a legal document from the clerk of the court where the complaint has been filed. A summons lets you know that the plaintiff has brought a lawsuit against you, and also gives you a date by which you need to file an answer or other response. An answer is your response to the complaint: whether you agree with the facts stated in the complaint and/or whether you think the complaint is invalid for procedural reasons.
Highlight, circle, and underline your response date—you will not want to miss the deadline for filing your response or else the court may accept everything that the plaintiff has asserted in her complaint as true and then rule against you.
If no summons accompanies the complaint, call the clerk of the
court listed in the complaint, and find out whether the plaintiff
actually filed it. If the complaint has not been filed, you should not
set the documents aside because the fact that the sender has taken the
time to prepare a draft complaint shows that she takes the situation
seriously. However, lawyers sometimes send legal-styled documents to
confuse and intimidate a defendant into acquiescing to their demands.
Keep reading this section to prepare for the possibility of a lawsuit.
2. Did you properly receive the complaint and summons?
If you have received both a complaint and a summons, then the plaintiff has initiated a lawsuit against you. Since both documents signal the beginning of the lawsuit, the law requires that you receive (are served) both these documents in specified ways. It is important that you check to see what the relevant requirements are for proper service in your jurisdiction.
To do so, you'll need to first find out what kind of court issued the summons. If the title contains the words "United States District Court", then you have been sued in federal court. On the other hand, if title contains the name of a state, (for example: Commonwealth of Pennsylvania) and does not contain the words "United States District Court", you have been sued in state court. It is beyond the scope of this guide to cover all of the requirements for service. If you think you might not have been properly served, you can:
- call / visit the civil clerk's office of the court to ask about the requirements
- go to your local court library
- search online for the information (check the court's website first)
- contact a lawyer; see the section on Finding Legal Help
If you do not believe that you were served in the proper way, you
need to inform the court about the reasons why in your answer. You will
receive a notice giving you a date to appear in court and further
explain your reasons, and your case should be dismissed. If you don't
inform the court on that date about the improper service both in your
answer and at your hearing, you could be barred from bringing it up at
a later point and getting the case dismissed.
3. Don't destroy documents!
Do not delete or otherwise destroy any blog posts, emails,
documents, backups, or other documents--whether in paper or electronic
form--that may be relevant to the lawsuit. Courts do not look kindly
upon such actions and the destruction of important documents could be
fatal to your case. Besides, you may find these documents useful in
preparing your defense.
4. Consider notifying your insurance company
You may be covered by insurance if you are found to be financially liable for your online activities. Consult the section on Insurance for more information.
5. Determine whether the court can hear your case
You live in Atlanta, Georgia, the plaintiff lives in Sacramento,
California, and the lawsuit has been filed in Dane County, Wisconsin.
Does a court in Wisconsin have authority over you? A lot of ink has
been spilled concerning a court's reach or jurisdiction to hear
a case. Broadly speaking, our legal system divides the question into
whether a court has personal jurisdiction, which is the authority over
the plaintiff and defendant, and whether a court has subject matter
jurisdiction, which is the authority to decide the issues presented in
the lawsuit. Questions concerning jurisdiction can get very complicated
and are beyond the scope of this guide. If you've been sued in another
state or country, you may want to hire a lawyer to examine the
6. Gather your information
Organization is key to the litigation process. You should keep a file containing all the documents related to the lawsuit including printouts of any relevant emails and webpages. Additionally, note dates and times for each document in the file.
The complaint should outline the claims the plaintiff has brought against you. Typically the claims will be set forth in the titles of sections of the complaint, but sometimes they are buried. Familiarize yourself with the language used in the complaint and use the other sections of this guide, especially the sections on Risks Associated with Publication and Intellectual Property, to understand the reasons for the lawsuit.
Next, write down everything you know about the situation, including: when you received the correspondence, the nature of the actions that triggered the lawsuit, and any relevant interactions you’ve had with the plaintiff. The act of writing the summary allows you to evaluate your position and figure out your next steps because everything is fresh in your mind and later you may forget certain events; it will also help to focus your conversation with a lawyer (should you wish to consult with one) or be a good starting point for your own legal research; and finally, as you write, you may start to get a sense of the lawsuit's validity.
You should know that the plaintiff may request a copy of the summary, but the law will likely protect you from having to give it to her. However, as there are rare instances in which you may need to provide it, keep to the facts only and do not include your opinions about the situation.
The complaint portrays the plaintiff's side of the story; the
answer should portray yours. Go through the complaint and write out
each fact alleged by the plaintiff. Now, rewrite the facts using your
words. Do you dispute how the plaintiff has characterized certain
events or omitted others?
7. Decide how to respond
At this point, you should decide whether you want to represent yourself or hire a lawyer. If you have in fact been sued, you will invariably be better off if you hire a lawyer. Refer to our section on Finding Legal Help for more help on this issue.
- If you choose a lawyer, provide her with the file of all the documents related to your case, your summary, and your rewritten version of the facts. However, do not simply hand off your case and cease to work on it. Keep up with your own research about the legal process as you will still have important decisions to make—remember your lawyer works for you and that you should still be in control of how you want to proceed.
- If you want to represent yourself, your next
step should be to research and write your answer. While we cannot
provide you with legal guidance on how to construct your answer, the
following points may be helpful:
- Visit your local court library and find forms or templates for help in constructing your answer.
- Research how to present your arguments to the court in writing. You will likely have to use cases and statutes to support your positions.
- Your rewritten facts should be helpful as a jumping off point.
- Part of your answer will be to list of any defenses you believe apply to your case. A defense is a legal position that may limit your accountability, or even allow you to escape the lawsuit altogether--even if the facts of the plaintiff's complaint are true. An example of a substantive defense is the Fair Use doctrine in response to a claim of copyright infringement. An example of a procedural defense is that the court has no jurisdiction over you.
- Be sure to keep to the style guidelines specific to the court where you will file your answer.
8. Add the information about the lawsuit to the CMLP Legal Threats Database
This is an important action because creating an entry in the Legal Threats Database will help others who receive similar lawsuits know that they are not alone and assist them in weighing their options regarding how to respond. You will also allow the CMLP to track who is sending legal threats and make it possible for our lawyers to help others in a similar position.