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Answering Lawsuit FAQs with Joshua D. Brinen

Jul 27, 2022 | Litigation

How is a Lawsuit Started?

A lawsuit generally starts with two people who can’t agree on something and it gets heated or it doesn’t. Letters are sent between the two, one demanding something and one rejecting something. Then, one party will typically hire an attorney to draft the complaint, file the complaint with the court and then send the complaint in a special manner called Service of Process. Service of Process includes a summons, a complaint, and other ancillary court-required forms. Upon receipt of the summons and complaint, the recipient, who is now the defendant or respondent, has a set period of time to respond to the summons and complaint.

What Should You Do When You Recieve a Summons or Complaint?

The first thing you need to do is not panic. The second thing you need to do is not ignore it. It is a serious document. You have been sued. You only have a limited amount of time available to respond to that complaint. You need to seek out counsel in your jurisdiction who can advise you properly. The faster you do this, the better off you will be.

What is a Motion to Dismiss?

A motion to dismiss is a motion before you file an answer to dismiss a summons of the complaint. The motion to dismiss can come in several varieties. The most common variety is a motion to dismiss for failure to state a claim. Depending on the jurisdiction, and depending on whether you are in state or federal court, a motion to dismiss involves a plausibility standard. This standard means that on the face of the complaint, you’ve set out in a non-conclusory fashion, sufficient facts to make the causes of the action plausible. Another version of a motion to dismiss is a motion to dismiss for lack of either personal or subject matter jurisdiction. A motion to dismiss for lack of personal jurisdiction is a motion that simply says, based on the constitutional laws of the state you’re in, the state you’re being sued, and the federal government, it isn’t proper for the plaintiff to bring you to that court because that court does not have personal jurisdiction over you. A motion to dismiss for lack of subject matter jurisdiction is a motion in which you ask the court to dismiss the claim because the court itself is not the appropriate court to hear the complaint.

What is an Answer?

If you decide not to file a motion to dismiss, you must then answer. An answer responds to the complaint and has three different parts. In the first part, you will admit or deny or state that you have no knowledge or call out the pleading as a legal conclusion. You will go line by line and determine what is true, what is false, and what is not able to be responded to because it’s a conclusion or a legal statement. The second part is what is called affirmative defenses and the last part might include counterclaims.

What is an Affirmative Defense?

An affirmative defense is a statement in an answer that you are raising against the causes of action in the complaint. An affirmative defense is not a counterclaim but has many of the same elements as a counterclaim. So for example, if you don’t want to file a motion to dismiss for failure to state a claim, you can raise an affirmative defense that the plaintiff has failed to state a claim. You can also raise certain defenses such as equitable defenses, where you say, even if he’s right, the plaintiff is not entitled to relief because they have done wrong things too.

What is a Counterclaim?

A counterclaim is a cause of action that as a defendant, you are pointing back at the plaintiff, that you want money for the wrongs that they have committed. It may be similar to an affirmative defense, but often, these are claims that are brought and could have been brought independently if you had so chosen them or if the plaintiff had not beaten you to the courthouse.

What is Discovery?

After the summons and the complaint have been served, all of the motions to dismiss are heard and an answer has been filed, a lawsuit begins discovery. Discovery is the base of litigation in which all cards must be laid on the table, all documents must be produced, all questions must be answered and all statements must be admitted or denied. Discovery also includes oral depositions.

What is a Deposition?

A deposition is an opportunity for an opposing counsel to question you or a third party while you are under oath. A judge is not present, but a court reporter is present to transcribe the deposition. Opposing counsel will take your statements, ask you questions, take in what you’ve said, and ask more questions. These last most of the day in some instances. Everything you say will be written down, you will be under oath and you will be required to tell the truth. If your statements are inconsistent with what you have said prior or what you say at trial, the deposition can be used against you and to correct the record.

What is a Motion for Summary Judgement?

A motion for summary judgment is a motion brought after the close of discovery and after all depositions have been taken and reviewed. In a motion for summary judgment, you are asking the court to grant you a judgment that you can then take to the bank and collect or end the case with prejudice. A motion for summary judgment is a very high bar and it requires you to prove that there is no material dispute as to a material fact. If you can prove that there is no dispute as to a material fact that directly affects the cause of action, you may be entitled to summary judgment and avoid the expense of trial.

Contact a Skilled Attorney

Brinen & Associates advises clients regarding their options and remedies for lawsuits. Call (212) 330-8151 or send us a message to schedule a consultation. 


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I formerly worked as a satellite employee from my home state of New Jersey. I ended my employment with my former employer in 2016. In 2018, I was sued by my former employer for $1.1 million in Illinois State Court. I was referred to Brinen & Associates, LLC by a friend who is a client of the firm. Brinen & Associates, LLC came highly recommended. I contacted Joshua Brinen and then had a consultation at his office with his colleague Mark White. Together, Messrs. Brinen and White explained my options...

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