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3 Tips When You’re Sued

Navigating the waters of litigation is a daunting endeavor. If you find yourself named as a defendant in a civil lawsuit in California, big or small, it is imperative that you treat the event with the urgency and gravity it deserves. Here are 3 tips to ensure that your defense gets off on the right foot. 

1. Calendar Your Deadlines

The clock starts to run as soon as you are served with the Complaint and Summons, and the most common method, personal service, gives you 30 days[1] to file your responsive pleading. (The failure to timely respond could result in a default being entered against you.) The first thing to do after being served is to mark that 30th day on your calendar, before which there are numerous tasks to be undertaken – which include marshalling your documents, evaluating potential liability, and finding the right attorney (more on all of this below). Also keep in mind that earlier deadlines might be in play, depending on how you (or your attorney) plan to respond. For example, one type of responsive pleading is called a Motion to Strike[2], which can be used to attack the damages the plaintiff is suing for. In such instance California law requires that a defendant engage in telephonic meet and confer at least 5 days before the aforesaid 30 day deadline. Timing is everything in litigation, so don’t squander your time by waiting until the last few days to take action.

2. Organize Your Documents

There are several benefits to gathering and organizing the relevant documents early. First, putting everything together allows you compartmentalize the claims made against you, as well as evaluate what evidence you have to support possible defense theories. Second, not only will this exercise paint a clearer picture for you, it will also streamline any consultations with your prospective attorney(s) and could reduce the time your attorney might need to understand and evaluate your case (saving you on attorneys’ fees). Finally, unless the case settles early, you’ll be obligated[3] to organize and provide most (if not all) of these documents to the plaintiff anyway. The manner and method of organization will depend on the nature of the claims alleged against you - in some cases you’ll want to arrange the documents by type (e.g., contracts, correspondence, photos) and segregate according to each legal claim - while in others a chronological classification might make more sense.

3. (Objectively) Evaluate Potential Liability

Far too often litigants fail to see their case objectively and succumb to confirmation bias. This is especially true during the inchoate stages of a lawsuit. Rather than letting yourself become hamstrung by a myopic view, do your best to impartially evaluate your potential exposure. Some examples of important questions to ask: (i) how would a total stranger respond after hearing the plaintiff’s and your different sides of the story; (ii) assuming a judge and/or jury favors the plaintiff’s narrative, is the harm alleged commensurate with the amount of damages sought in the lawsuit; and (iii) is the plaintiff also seeking punitive / exemplary damages and to recover attorneys’ fees[4]? Honestly asking yourself questions such as these will help you (and potentially your attorney) make a better-informed decision as to whether and when you will decide that settlement makes more sense than protracted litigation. There are also strategic benefits to being able to objectively evaluate your case. For example, California Code of Civil Procedure section 998 is a cost shifting mechanism which could punish a plaintiff that fails to accept a reasonable settle offer. If attorneys’ fees are recoverable, then the burden of paying the defendant’s (i.e., your) attorneys fees might also be shifted to the plaintiff if the plaintiff’s award at trial is less favorable than the defendant’s offer.


Mike Cheng is a partner in the litigation department at Berliner Cohen, LLP. He can be reached by telephone (408) 286-5800 and via email (


[1] The length of time to respond depends not only on the manner of service, but also the jurisdiction in which the lawsuit is filed. Carefully review what has been served to determine this information.    

[2] Code of Civil Procedure section 435.

[3] A significant part of litigation entails written discovery, a process where information and documents are exchanged between the parties.

[4] Unless authorized by contract or statute, parties are generally required to bear their own attorneys’ fees, irrespective of the lawsuit’s ultimate outcome.