If you are served with legal papers, you must stop normal activities and take immediate action. What you must do and when you must do it depends on a number of variables (some of which are discussed in the next paragraph). Exploration of those variables is beyond the scope of this article. Instead, this is a quick summary and checklist of issues to consider, actions to take, and the time in which those actions must be taken.
The legal papers may come from a criminal court, from a court that handles civil disputes, or from an administrative agency. The papers may be a notice of an urgent hearing seeking immediate relief, a lawsuit against you, or a subpoena requiring you to produce documents or testify. You may have been served individually, or your company may have been served. The papers may be from a federal court or a court of the state. Within the state system, there are often several levels of courts.
This summary is written from the perspective of a small to mid-size business, although many of the issues apply equally to legal papers served on individuals or on large businesses. Businesses that have received such papers before may have procedures in place to address these issues, hopefully incorporating the points made in this article.
What Legal Papers Were Served?
Notice of a Hearing: The papers may provide very short notice of a Hearing, seeking a Temporary Restraining Order or an Injunction. Such papers require immediate attention.
Summons & Complaint: The Summons is a notice from a court that a lawsuit has been commenced against you or your company. The Summons tells you the time by which you must respond. The Complaint is the statement of the other party’s claim against you or your business.
Subpoena: Even if you are not a party to a lawsuit, you may be compelled to collect information and to give testimony in a legal proceeding. You have a limited time to object to the scope of a Subpoena, to seek to narrow the collection of information, and to seek compensation for the expense of compliance.
How Were the Papers Delivered?
Sheriff or Process Server: Commonly, such papers are delivered by a Sheriff or a Process Server; however, legal papers may be validly served in other ways. Always assume that the legal papers were properly served. (Your lawyer may later determine that service was not proper and raise a defense.)
Certified Mail or Statutory Overnight Delivery: Legal papers may arrive by Certified Mail – Return Receipt Requested or by UPS, FedEx or other such method that requires you to sign for the delivery. Do not avoid service by refusing to sign or by refusing to retrieve the Certified Mail from the Post Office.
Substituted Service or Publication: There are limited circumstances under which the other side may be able to “serve” you or our company by serving the Secretary of State or by publishing a notice of the lawsuit in a County Legal Organ, which is a newspaper authorized by applicable law to publish notices of legal proceedings. Even though you may not have actually seen the legal notice, the law will treat the substituted service or publication as valid service upon you or your company.
Novel Methods: As more communication and commerce are done by electronic devices, the boundaries are being pushed. A few courts have allowed electronic service. It is not yet common; however, if you are concerned that you may have received legal papers electronically, ask your lawyer.
Who May Be Served?
Personally: The papers may be served on you, individually, or as a representative for your company. You may be served at your work, at your home, or at any place you are found.
Person with whom you reside: The papers may be properly served on an adult who resides with you.
Agent or Employee: Your business may have designated an Agent for Service of Process or service may be attempted on an employee or other agent of your company. Your Agent or employee must be aware of the issues discussed in this article.
What is the Time For Response?
Read the papers and get an idea of when action is required. Putting aside the sometimes complex rules for counting dates, generally:
Notices of Hearings seeking urgent legal relief (TROs or injunctions) typically have very short deadlines. The date will be shown in the Notice. Your first call should be to your lawyer.
Subpoenas generally specify the date for a response or compliance with the Subpoena. In addition, the Subpoena may require the filing of any Objections you may have on or before the time specified for a response. While the deadline to file an Objection is often 10 or 14 days after service, it can be earlier.
Summons & Complaint: a Summons typically states the time within which a response must be filed, generally 21 days from the date of service for proceedings in federal court and 30 days from the date of service for proceedings in Georgia courts.
What to do?
As soon as you are aware of legal papers, you should make a note of how, where, when, and by whom the papers were received. Make those notes on the papers or on some other record maintained with the original copy of the papers.
Never ignore legal papers, even if you believe they were not properly served or that the claims are groundless. If you ignore the papers, you may miss your opportunity to resist the imposition of a Temporary Restraining Order, you may lose the right to object to a Subpoena or to seek compensation for the costs of complying, or, if you ignore a Summons & Complaint, every allegation of fact will be deemed admitted and default judgment will be entered against you or your business.
Instead, contact your lawyer, your insurer, and contact the business that may have agreed to indemnify you (for example, pursuant to a contract). Failure to give notice may cause you to lose your right to contest the relief sought, lose your insurance coverage for the claims at issue, or lose your right to be indemnified.
Immediately upon service, you should collect all necessary information, e.g., the names and contact information of witnesses and identification of relevant information and documents. Once identified, you must preserve the paper files and electronic files on computers.
Who to Contact?
Your Lawyer: Service of legal papers triggers important deadlines, and action must be taken before those deadlines expire. If you do not take appropriate action within those deadlines, you lose the right to defend against the lawsuit – even if the lawsuit has no merit. You must immediately notify your lawyer about the notice, suit, or subpoena so that your lawyer can determine the important deadline dates and file the necessary responses.
In addition, you may have a claim against the person or entity that sued you or your business, called a “counterclaim.” Some such counterclaims are “compulsory” and must be made at the time when you respond to the Summons & Complaint. Discuss these with your lawyer immediately so that your lawyer is able to timely assert any compulsory counterclaims.
Insurance Carrier: Your insurance policy can be a great benefit, not only paying for any damages that may be found due but, often as importantly, paying for the cost of your defense. The insurance policy, however, has important conditions that must be met in order for the insurer to provide coverage and a defense for a given claim. Those conditions include notifying the insurer of a potential claim and immediately transmitting a copy of the legal papers to the insurer. Failure to meet those conditions within the time required by your insurance policy could result in a denial of insurance coverage for the claim, even if the claim is otherwise “squarely” covered by your insurance policy.
Another Business: You may have negotiated contract terms with another business requiring that business to indemnify you or your company or to purchase insurance protecting your company. You and your lawyer should explore whether any such rights are available and, if so, immediately notify that other business and tender the defense of the action.
Confidentiality of Your Communications.
Your communications with your lawyer seeking legal advice about the legal papers are privileged, as long as those communications are maintained in confidence by you.
Conversely, anything you say to the Process Server, to the author of the legal papers, or to your co-workers may be used against you in the legal proceeding. You should not comment upon or discuss the matter with the Process Server, the adverse party, or your co-workers unless instructed to do so by your lawyer. Be careful about who is in the room when you speak and to whom copies of emails are sent.