Up against the wall
Understanding the intricacies of becoming a defendant in a civil lawsuit
• CARY B. BARR, J.D.
Being ready for a lawsuit against you begins with the event. Many times, as an encounter with the public unfolds, you suspect that the individuals you are dealing with may try to sue you. Your clue may be as blatant as them saying, 'Tm going to sue you" or "You'll hear from my lawyer." When this occurs, be sure to take steps to remember what happened and the sequence of events. This will help you later when you are asked to recall the circumstances of your meeting the plaintiff.
Sometimes, however, the lawsuits come out of nowhere. And that is exactly where they should return. You may simply be misidentified as an officer who was involved with the circumstances surrounding the event outlined in the lawsuit. Immediately tell your defense attorney that you are not involved in this lawsuit. Sometimes plaintiffs and their attorneys get the facts wrong. You should be able to get dismissed out of the lawsuit. If you wait, it will be more difficult to claim non-involvement, and much of your time, your attorney's time and your family's concerns and worries will be expended. When the documents arrive, make sure that you ask for and receive a complete copy of what was served and read all of it. After you have had time to calm down, read it again. Make sure that you understand all of the allegations made against you. If you do not, make sure to see your attorney and get a full explanation of what is being said about you. Also, make sure you understand the damages that are being sought. Are the damages seeking compensation for the plaintiff? In other words, is the plaintiff seeking to be made whole? Are there punitive damages sought? These are damages designed to punish you and deter you from such conduct in the future. Make sure your attorney explains what type of behavior the plaintiff must prove for punitive damages to be awarded against you.
When you read the complaint, it will start with a general statement of the facts. These should include the "who, what, where and when" of the facts as believed by the plaintiff. Be sure they are facts and are not just wishful thinking on the part of the plaintiff. Tell your attorney about any misstatements of the facts. Be sure to give a full explanation of why the facts are in error. Based on your initial discussions with your attorney, you may be dismissed out of the lawsuit. This could happen as the result of your attorney filing what is known as a Motion to Dismiss. There are several reasons for filing this motion, which we will not go into in this article. If the judge grants this motion, you're out of the case. The plaintiff has a chance to appeal this ruling, so you need to hold your breath for a month, until you hear word that the time for appeal has passed. Be sure to stay in touch with your attorney at all times. She or he can help you understand the status of the case better than anyone. If the Motion to Dismiss is not granted or even filed, you are then into the discovery phase of the lawsuit. Documents between the plaintiff's attorney and yours will proceed for about four to six months. These will include all of the department's official reports as well as information that will support the plaintiff's damage allegations. Such reports originate with doctors, hospitals, employers and prospective employers. They could also include statements from relatives, friends and colleagues. There is not much for you to do at this point but to wait and keep informed. Next up are the depositions. The plaintiff, under oath, will be questioned by your attorney. You, also under oath, will be questioned by plaintiff's attorney. Be sure to ask your attorney, before the deposition, what type of questions you will be asked. This will help you be less nervous and perform better at the deposition.
Remember, always tell the truth, don't embellish. Also, only answer the questions asked. Do not offer anything beyond a response to the question. If you are unsure about what the question is, ask the attorney to clarify. If the question is an improper question, your attorney will object and tell you not to answer. Resist the temptation to answer the question anyway. Your attorney knows what he is doing. The reason for his objection may not be clear to you, but that is an issue that the attorneys will argue before the trial judge. At this point, the parties should know the strengths and the weaknesses of their case. They should have a fairly good idea as to how the issues at trial will be resolved. Now is the time for a settlement conference with the trial judge, which I will discuss next month. W Cary Barr is the president of RHB Insurance Services LLC., an insurance product development company, as well as the president of Woodford County Mutual Insurance Company. He has a ].D. from the John Marshall Law School in Chicago, and has been admitted to practice before the Supreme Court of the U.S.