Answering a Complaint

If you went to law school, you (hopefully) know that to initiate a lawsuit, a party files a complaint.

I love drafting a complaint. It is so fun to dig into the facts and tell the story.

But, typically, I'm on defense and tasked with answering the complaint.

Here are some things to keep in mind when answering a lawsuit or legal demand:

🤔 Talk to the client. Listen. Determine their goals. Get their side of the story. Start thinking about themes and what additional information you need from them to defend their positions;

🤔 Figure out whether settlement is an option upfront;

🤔 Determine whether a call to opposing counsel could be worthwhile--to establish rapport, determine the other side's goals, etc.;

🤔 Begin gathering the best evidence and electronic information. The sooner you start this, the better off you'll be (always);

🤔Confirm and docket the answer deadline. Consider whether you need more time to answer and how best to go about that. Build in time to draft, have a partner review, and have the client review--all well before the deadline if possible;

🤔 Review the complaint and identify the legal claims asserted against your client;

🤔 Pull the legal standards outlining the elements of each claim and the pattern jury instructions if they exist;

🤔 Pull the local rules and judge's individual procedures as applicable;

🤔 Pull template documents and/or have your assistant create an answer shell;

🤔 Begin answering (admitting or denying) each paragraph. As you do this, identify where you need more information from you client. Start identifying facts you need to defend you client.

🤔 Consider whether there are any counterclaims your client can make against the plaintiff;

🤔 Ask whether there any third parties that should be joined to the action;

🤔 Review standard and specific affirmative defenses, especially those that you might waive if you do not include them in the answer;

🤔 Complete the first draft with time to walk away and come back to it--ideally more than once;

🤔 Confirm whether you need to file a notice of appearance before you answer and draft/file one accordingly;

🤔 If your jurisdiction requires a corporate disclosure statement, include that in your drafting process; and

🤔 Submit to the assigning attorney and client, welcoming and incorporating feedback along the way.

Every legal claim and dynamic is unique. Your goal: to provide tailored advice and representation based on the specific circumstances presented--and: to pursue and hopefully achieve your client's litigation goals.

What else do you include in your answer-drafting process?

#emilylitigates #professionalwomen #law #legalwriting