I’ve just been sued! Now what?

“You’ve been served.” Three words that can strike fear in anyone’s hearts — from public officials to business owners to innocent (until proven guilty) bystanders. Whether you’re expecting it, or you see it racing toward you, no one wants to be on the receiving end of a lawsuit. Luckily, if the worst should happen, you’re not alone.

This guide will identify steps to take in the event of an unexpected lawsuit.

Keep calm. Act quickly. Tell someone.

The moment the paperwork hits your hands; the clock is ticking. You have limited time to respond to the complaint and missing it could have serious consequences. Notify your insurance carrier and legal counsel as soon as possible so they have time to develop a defense and respond in a timely manner. Plus, almost all insuring/risk pool agreements require notice of actual claims. As an insured, don’t take any part of the defense into your own hands (e.g., retaining counsel, talking settlements, etc.)

In addition to the defense, your assigned counsel will help coordinate internal and external responses. Internally, he or she can investigate and evaluate risk control measures, then implement corrective actions to prevent problems and mitigate risk. Externally, he or she help coordinate public and media response, since lawsuits are public record and tend to draw attention. Your law director or legal counsel will want to discuss and agree on how to handle the media. From a risk management perspective, having a media policy and procedure in place before any lawsuits arise is recommended.  If there is a media policy in place, it is important to make individuals aware of the procedures contained in the policy. 

Preserve everything

The next step happens before you’re officially served — right about when your “sued senses” start tingling. As soon as litigation is reasonably anticipated, you must preserve evidence: emails, documents, videos, photos, tangible objects — anything that might be remotely relevant. Failure to do so could lead to serious repercussions like court sanctions or a damaged defense.

Your defense counsel will work to identify potentially relevant items, but your best bet is to keep it all. 

Be careful who you talk to

While public entities generally have the responsibility to be open and candid to the public, they still have the benefit of attorney-client privilege. If you’ve ever watched a legal show, you’ll know this means all communications between the attorney and the client are protected from disclosure during litigation.

This is a powerful but fragile tool. To protect it, make sure legal communications are kept separate from day-to-day emails and only shared with those who need to know. One accidental forward can waive privilege and expose sensitive strategy.

Get ready for the long haul

Lawsuits can be expensive. Not just financially draining, but draining on time, energy and human resources. Communicating with counsel, preserving evidence and gathering information all take a considerable toll. Trial appearances, depositions and document reviews mean you might need all hands on deck to respond.

Add in the fiscal impact, and a lawsuit can be a major drain on any entity. You’ll want to discuss with counsel the scope of what they’ll handle and weigh the benefits of minimizing costs with settlement negotiations.

12-point lawsuit response checklist

If you find yourself in a lawsuit, here’s a quick 12-point checklist you can reference for how to respond:

1. Notify your insurance carrier or claims representative.
2. Contact your legal counsel.
3. Alert your media relations team.
4. Prepare a public statement with legal input.
5. Preserve all evidence (videos, documents, emails, etc.).
6. Review the complaint to see who is being sued.
7. Identify your communication control group to maintain privilege.
8. Keep privileged documents separate from routine files.
9. Prepare for depositions.
10. Consider the impact on time and resources.
11. Identify and manage additional risk exposures.
12. Work with legal and risk teams to adopt future prevention measures.

The ball is in your court

Being sued is never easy and never fun — there’s a reason people love to turn it into a threat. But, with this guide, it doesn’t have to be a chaotic process. Preparation today can protect you tomorrow.

If you need help building a response plan or training your team, we can help.