What to do when you're sued in Illinois

The following is adopted from my legal guide published at Avvo, a website that helps both educate the public on aspects of the law and review attorney profiles to determine who is the right attorney for them. I am rated "Superb" by Avvo and am one of the top-rated attorneys in my location. Here in the northern suburbs of Chicago, you don't have to go downtown to find good attorneys at reasonable prices...

There’s a knock on the door. It’s the sheriff. You’ve just been served. Now what? The following guide aims to give you a general procedural outline of defending a lawsuit in Illinois. It is educational, so that you have a general event of both what you may expect and where in the process you are. Of course, it does not include every possible event and is not a substitute for case-specific legal advice. If you have been sued, it is in your interest to seek legal counsel as soon as possible. Failure to do so may have serious adverse effects, including a judgment taken against you.

Service is the fancy term for being handed the summons and Complaint by the sheriff. Right after service is the time to find and obtain counsel, or tender the summons and complaint to your insurance company, if you’ll be covered. What-ever you do, don’t wait and don’t ignore it, even if the Complaint seems frivolous. This last part is key. You can't ignore it, period, exclamation point. If so do, a judgment will be entered against you. If you fail to vacate that judgment within 30 days, it'll become very difficult if not impossible to get rid of it. The Plaintiff can freeze your bank accounts, garnish your wages, even try to seize property. It won't matter then that the Plaintiff might have been wrong - you won't get another chance.

Answer: the next step, in most cases, is to file your Appearance and Answer. It’s usually due 30 days after you’ve been served (but not always… again, check the papers you’ve been served for the actual date in your case), and requires a court fee. This is also your only chance to ask for a jury trial, if allowed (and if the Plaintiff didn’t). Small claims cases (seeking under $10,000 in Illinois) don’t require an answer. The Answer is a straight-forward, but important, document, admitting or denying each paragraph of the Plaintiff’s complaint one-by-one, and bringing any counter-claims you have against the Plaintiff.

Sometimes, instead of filing an answer, you file a “Motion on the Pleadings.” In essence, these Motions ask the Court to dismiss the Plaintiff’s Complaint because it’s not properly written, NOT on the merits. That is, for the purpose of these Motions, the actual facts don’t matter as much as the Plaintiff’s ability to write a legally sufficient Complaint. Usually, even if you win your Motion, the Judge will allow the Plaintiff a chance to amend (i.e., fix) his Complaint. There are some times, if a Complaint is exceptionally poorly written, where a Motion is absolutely necessary. There may be others where there is an absolute defense that may immediately lead to the Complaint being dismissed (note that there are very few of these, but there are some); but often times, these Motions won’t really do anything beyond delay case progress and run up costs. Whether it’s a proper plan in your case is a decision you and your attorney should reach together. There may be strategic reasons for bringing a Motion. While no attorney should bring a frivolous motion, there's nothing wrong with being a nit-picker, if called for.

Eventually, the Complaint will be answered, and it will be time for discovery. Discovery is the longest, most tedious, and often most expensive part of litigation, when each party seeks information from the other through a variety of means to build their case. It is not uncommon for discovery to take years, especially as some attorneys seem to take perverse pleasure in seeking every document, every person, and to leave no stone unturned. Sometimes this is absolutely necessary, sometimes not. Again, a good attorney will work with you and your litigation budget to attempt, as much as possible, to do what is necessary without wasting time and money doing the unnecessary. Even so, however, there may be little you or your attorney can do about an opponent who is trying to bury you.

After a certain point in discovery (it varies with each case), there will come a point where a defendant has to consider summary judgment. Essentially, summary judgment asks the Court to dismiss the case because all the Plaintiff’s evidence doesn’t (and can’t) prove what he needs to prove under the law. In Illinois, Summary Judgment does not come easily; the Plaintiff merely has to show that legally important facts remain in dispute to survive, not that he’s necessarily right about the facts. This is another area where some attorneys file Motions regardless of the chances of success, but again, a good attorney works with you and your budget to analyze the chances of success. It’s rare that a Motion for Summary Judgment will be a “slam-dunk,” which is why it’s good to have an attorney who both keeps you informed and is honest with you, not just telling you what you want to hear, to allow you to determine if the time and money spent on a Motion for Summary Judgment is a good investment.

If the Plaintiff’s case can survive Summary Judgment, it must be tried. Most cases don’t go to trial; they settle at one of the stages above, or with the help of a mediator or arbitrator. Settlement often is the best solution, however, a good attorney will prepare each and every case in his office with the assumption it will go to trial, as to do otherwise may force a client to accept a sub-par settlement out of fear and a lack of preparation, which is never a good thing. This is especially common in personal injury claims, where many attorneys will just skim along. As a defendant, it may work to your advantage.