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What Do I Do If I've
Been Served?
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I
Have Received a Summons and Complaint -- What Do I Do?
This means you are being sued in Court. If it says "State
of Utah" in the Caption, then you are being sued
in one of the Utah State Courts. If it says, "United States District Court" in the caption, then you are being
sued in federal court.
The Complaint contains the claims being made against you.
The Summons is the notification to you that you are required to respond and provides information on where
and how to respond to The Complaint.
Whether you receive a Summons which identifies it as a "Ten Day Summons"
or a "Twenty-One Day Summons" you have twenty-one days to respond to the Complaint after it and the Summons have
been served upon you. You count the day following service as the first of the twenty-one days and the days are calendar
days, not business days.
The Answer is the response you need to file to the Complaint in writing
with the original going to the Court and a copy to counsel for the other side (or the other side if not represented by counsel)
disputing the other side's claims in order to hope to avoid a Judgment against you. The Answer needs to be filed within
Twenty-One (21) Days. See Rule 12(a), Utah Rules of Civil Procedure.
Where you are being sued, you are referred to as The Defendant
with the party suing you being referred to as The Plaintiff. When you represent yourself (without an
attorney), you are generally referred to as a Defendant Pro Se (person defending himself/herself).
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What Are The Rules Applicable to Preparing an Answer?
In preparing an Answer to a Complaint by the party suing you, you will want to read and clearly understand Rules 8-12
of the Utah Rules of Civil Procedure.
Rule 8(b) discusses Defenses and the form of denials
Rule 8(c)
discusses "Affirmative Defenses" which should be specifically plead or some of them MAY be considered waived. These
"Affirmative Defenses" include: accord and satisfaction, arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant,
laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting
an avoidance or affirmative defense.
Rule 8(d) makes it clear that failure to DENY claims or "averments"
in a Complaint (or other pleading where a response is required) means that these undenied claims or "averments"
are ADMITTED. This means that failing to deny essential claims can result in a Judgment being obtained against you.
Rule 9(c) discusses the fact that any claims of "Fraud or Mistake" MUST be stated with particularity.
Rule 9(i) discusses the fact that you must refer the Court and parties ("cite") to the section and subsection
of any statute ("law") for which you claim the other sides claims are Past the Statute of Limitations (the time
period in which a party may lawfully pursue a claim against another).
Rule 10 discusses the form that your Answer
and other pleadings must comply with in order to meet Court Requirements. Read this carefully!
Rule 11 talks about
what signing and filing pleadings and other papers with the Court means and the sanctions to which you could be held.
You can find and study the Utah Rules of Civil Procedure online HERE
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In
All Civil Actions You Have the Right to a Trial By Jury
Under Utah law, you have the right
to request a Jury Trial on any civil case. In order to make sure you get a Jury Trial, you MUST request it in your Answer
which you file with the Court and which you send to opposing counsel. You also need to pay the Jury Demand Fee to the Court
(presently $250). If you do not do these two things right up front, you may lose the right to a Jury Trial.
In case you did not know, a Jury Trial simply means that a Jury or group of people gets to decide which disputed facts are
true rather than a Judge. A trial where the Judge decides the disputed facts is called a Bench Trial.
Making the
request for a Jury Trial can be as simple as including the following statement in your Answer: "I Hereby Demand a Jury Trial."
For reasons I choose not to go into here, in a collection action by a collection agency or business regularly engaged
in the business of collecting debts, I generally recommend to my clients that they include a Jury Demand in the Answer (and
pay the fee).
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Get a Lawyer or Not?
I have included a great
deal of information on this webpage about how to respond to a Complaint. You may ask yourself whether or not you should have
a lawyer to help you.
I have a simple rule of thumb. ALWAYS consult an
attorney As Soon As Possible (ASAP) once you know you are being sued. A consultation of even a couple of hundred dollars
(mine are less than that and, in some cases free) could be the best money you spend. After over 20 years of practice, I can
tell you that those who took the cheapest approach up front (trying to avoid the attorney) generally either hurt their case
or ended up spending more money than they would have had they used an attorney from the beginning who had to try to fix their
mistakes. Many times, these potential clients had irreparably hurt their case.
Many
times, I refer someone in an initial consultation to either small claims or another attorney who may be better suited to the
particular matter if I think it is in the best interest of the individual. Lots of times when they need to go the legal route
alone, at least I can steer them in the right direction to start and help them avoid many of the initial problems.
Let's face it, however, even if the facts should be on your side, if the other side
has an attorney or is more knowledgeable about legal proceedings, you will probably end up losing simply because you did not
know the procedure. I speak with several individuals each month who tried to represent themselves, thought they would actually
get to have a "day in court" in front of a Judge, and who ended up having a Summary Judgment entered against them
or their Answer dismissed and a Default Judgment entered as a sanction for not responding to discovery they received.
Initial Disclosures? Discovery? What is that, you ask? My point exactly! If you
don't know what it is and the rules regarding it, you will likely lose.
A
consideration for me and for you is whether or not there is the potential to get attorney fees recovered for you. In Utah,
generally, you can only get attorney fees awarded if provided for in a contract between the parties or in a Utah statute (law
enacted by the legislature). An early review can at least help you to know of the potential for recovering some or all of
your attorney fees.
Even if Attorney fees are not likely to be recoverable,
the risk of a loss (the size of a Judgment against you) may make it worthwhile to hire an attorney.
Utah Courts have loosened the restrictions on the "unbundling" of legal services. What
this means is that you may be able to hire an attorney for a specific part of your case (rather than having the attorney "locked
in" for the entire case). Be sure to ask me or another attorney of your choice if this is an option in your matter.
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