This essay focuses on 1) mental preparation and then 2) forming practical strategy for dealing with the allegations contained in a lawsuit. For more information on technical aspects of the lawsuit process, see our series on the Anatomy of a Lawsuit.

Stay calm and collect yourself.

The very first thing you must do if you are sued is to breathe. Breathe slowly. Take in the air through your nose, to your belly, and slowly exhale. Repeat until your heart rate has slowed.

This is an important exercise, because it goes straight to the most important aspect of defending a suit: maintaining control of yourself. This is very important for your own mental health, and will actually aid you in the litigation by having a sober mind.

If you have control of your feelings, your reactions, then you can think clearly. And when you can think clearly you can assess the case for what it really is and respond appropriately, all without serious disruption to your life and business. You will be able to handle the case as if it is merely some side project or small matter that must be addressed, but does not interfere with your major projects or daily business life.

Responding to the frivolous lawsuit

Understand that a lawsuit is nothing more than an allegation. You deal with allegations all the time. How do you respond? Huffing and puffing is one way, but the older we get the more we realize the ineffectiveness of that approach. Plus, the unnecessary expenditure of way too much energy that should be channeled toward more positive and productive outlets.

The best way to respond to an allegation is to dissect it and address it, head on, succinctly, and with reasons, explanations, or proof, backing up each itemized reply.

The only difference with a lawsuit is that it is a grievance filed with a court, a legal body with the power to make you pay money to the aggrieved party. But that is only after proof had been presented and the court has been duly convinced of the merits of this grievance. Ignore mainstream or popular sentiments; it is much harder to maintain a case today than ever before in our legal history.

If the lawsuit is truly frivolous, then after you breathe, you should chuckle, as formulating your response becomes even easier.

Lawsuit is mixed with truth and fiction

If on the other hand, the allegations are mixed with some truth and some fiction, then you should immediately assess what is wrong and what is the best way to solve this problem.

We all understand the basic concept of responsibility as adults. We must fix problems we create, clean up our messes, and apologize when we make mistakes. Therefore, you should ask, was there something I could have done differently to prevent this? Or was it impossible to see this coming?

Nevertheless, whatever could have been done is simply a lesson for the future. For now there is a matter that must be addressed. If you caused a problem, or partially caused, begin assessing what happened, what went wrong, and how much responsibility you should bear. Then assess, in dollars, what the appropriate remedy should be.

Formulating your Lawsuit Defense Strategy

Always bear in mind that the party bringing the allegations has the burden of proving them. Now, they are entitled to access your people and your documents, so bear that in mind. That is called legal discovery.

But this is important to remember. They must actually present proof in support of these allegations, proof in either the form of witness testimony or some other physical evidence, the credibility of either is subject to intense scrutiny by you, the judge, and the jury.

What is your defense? You too must have testimony and evidence in support of your rebuttals.

Managing Litigation Expenses

This is what really ticks most people off: not the simplicity of addressing some inconvenient, pesky and obviously faux allegations, but the necessary expenses that will be incurred in doing so. Here is how to deal with managing legal costs and expenses.

Let’s recap. You have taken control of your own mental reactions and feelings, this is most important. You have then combed through the allegations and assessed what is plausible and what is fiction. You have evaluated the credibility, integrity and reliability of the anticipated testimony/evidence that would supposedly support these allegations. You now have a handle on what is being thrown at you and whether it should stick. Put all of this into an outline.

Now what would you have to do to defend against this outlined case against you? Create your own outline of rebuttals.

Now that you have your own outline, start filling in the details of how you would actually accomplish putting together this rebuttal case. What individuals would you need to speak with, prep, depose, and present at trial. Estimate time and hours.

What people on the other side would you want to depose?

What documents, video, data, etc. does the other side possess (or should possess) that you would need to inspect? Again, estimate time and hours.

Meeting with Prospective Legal Counsel

At this point you should be able to really get a handle on how complex or simple this case really is and whether putting together your rebuttal case will be difficult and challenging or rather uncomplicated.

What is a reasonable for fee for all of this? How many lawyers, paralegals should this take?

These are rhetorical questions, but you are now equipped to hold a productive consultation with a prospective lawyer. Bring your outline or create a new one with counsel.

Discuss whether hourly billing or a flat fee or a multi-tiered series of fees would be appropriate. Now, negotiate.

Discuss whether any fee-shifting statutes would apply. These are laws that award attorney fees and costs to the prevailing party. Discuss whether prospective counsel would be willing to collect his fees at the end, or a partial retainer paid up front, or any combination. Again, discuss freely. This is a negotiation.

Conclusion: You are in control

You are calm and collected, you have honestly evaluated and assessed the merits of the case, the time and effort involved, and left a little cushion for any unknown “X” factors that could pop up. You understand that in life, people say things that just aren’t true. Often because they don’t know how to appropriately express other feelings, concerns, or anxieties, perhaps unrelated but heavy on their heads. How do we respond? In the same disordered manner?

Often, a good, organized defense can make bad claims go away merely by being so orderly, sober and prepared.

And if more effort is required to demonstrate the truth, you are prepared to do so, and with the benefit of a managed budget. Remember this maxim: credibility is everything. It applies as much to the other side as it does to you.

About Travis Charles Smith

Travis Charles Smith is an experienced trial lawyer practicing in Oklahoma City. He primarily represents plaintiffs on a contingency basis and has written about alternative billing and managing the costs of litigation. He is available for consultation upon request. You may contact him by email or phone at (405) 701-6016.

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