For the purposes of this discussion we are going to assume that we are talking about Florida state courts. The rules and timelines in federal and other special courts can be quite different.  First, you need to determine if you are sued. Letters from collection agencies or attorneys demanding payment or some action are not lawsuits. The first thing that will happen when you are sued is that a document called a complaint will be filed with the court. At this point, you probably will not know it has happened unless you check the clerk’s records online everyday. In addition, a document called a summons attached to the complaint will demand you serve written defenses within 20 days after service of the summons upon you.  Generally, the summons and a copy of the complaint must be served upon you in person.  However, anyone over 16 that resides with you can be properly served on your behalf.  If you find out that someone is trying to serve you, trying to duck the service and ignoring the lawsuit may not work. In some instances, service can be made by other means such as publication in a newspaper. If so, a judgment can be entered against you without your knowledge.

A summons will generally instruct you to file written defenses with the clerk of the court and send a copy to the Plaintiff or his attorney within 20 days.  The 20 days start the day after service and don’t exclude weekends and holidays.  However, you must read the summons carefully, as there are special types of summons that could have shorter time periods, a demand that you show cause why you filed certain documents in the public record or ask you to show up for a hearing– as is required in small claims court. We will discuss small claims court procedures a little later in this blog.

A written defense can be in the form of a document called an answer. This is merely admitting or denying the allegations in the complaint.  You can also allege what are called affirmative defenses at the end of your answer. These are defenses that you can raise even assuming that the allegations against you are true.  Some of these affirmative defenses can be considered waived if not immediately pled.  Another possible written response if a document called a motion to dismiss. This can be done when the complaint does not state a cause of action or other technical defense assuming that the allegations in the complaint are true.  Almost always, this motion to dismiss will need to be filed and served as your first response. Otherwise, you may be deemed to have waived your grounds to dismiss by merely filing an answer and affirmative defenses.

In small claims court, the summons will have a court date and time for a pre-trial conference.  Small claims cases involve disputes no more than $5,000.00.  A written defense is not required to be filed with the court.  Yet, it is very important to show up on time for the pre-trial conference.   Otherwise, a default will be entered against you that will eventually be turned into a final judgment without further notice to you. In some counties, the judge will discuss the case with the parties and advise them of the procedures of the court and consequences of certain actions. Other counties will send the parties directly to a mediation conference. Mediation is a process where someone called a mediator will meet with the parties to see if an acceptable compromise can be accomplished.  In any event, the first hearing is not the trial. So, don’t bring witnesses or expect to present evidence.

If you are being sued, it is recommended that you consult with an experienced litigation attorney in Orlando immediately after being served a summons.  This attorney can provide guidance and file a proper response that will preserve your rights and defenses.  If tempted to go it alone, keep in mind that if you are an officer or managing member of a defendant legal entity such as a corporation or limited liability company, court rules require that it be represented by an attorney, unless the matter is in small claims court. A non-attorney’s papers filed on behalf of such an entity will be stricken by the court.

– Brian Gillis, Esq., is an Orlando litigation attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  He welcomes questions and comments regarding the above and can be reached at bgillis@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.