Being served with a complaint can be scary. Knowing the basic process and what to do (and not to do) can be very helpful and potentially save you from shooting yourself in the foot. We litigate hundreds of cases in multiple states every week, so this is to share some basic info and tips for those who may not have faced this before and want to be sure they do the right thing.
First things first. The law is very lenient with those who want to represent themselves. You don’t need to have a lawyer to defend yourself, and filing responses to the complaints you’ve been served is something that does not cost anything (at least for the initial response). However, there are things you can do or say that can really destroy your chances to succeed in your defense. It is highly recommended that you consult with an attorney – one who has their 403 trial certification and has performed actual litigation, not just a real estate transaction attorney, for instance – before you do anything. There are a number of trial attorneys out there who will even guide you in how to be a pro se litigant if you just want some guidance and not to fully hire an attorney. And, you’ll want to do it really quickly. The clock starts ticking as soon as you are served. Do not ignore court papers!
The basics:
- The Complaint: The plaintiff (person or business claiming they have been “damaged” due to a violation of some law or contract) files a Complaint in the court. This is the driver of everything else.
- The Complaint is the document that details which law/laws were violated or contractual agreement breached, and what the Plaintiff is seeking in damages as a result.
- The Complaint will come with a Summons, detailing the information about the case and the court and give you contact information that you will need to respond.
- The person responding to the complaint is the Defendant.
- The Complaint and Answer are referred to collectively as “pleadings.”
- The Plaintiff/Plaintiffs and Defendant/Defendants are referred to collectively as “parties.”
- The Complaint costs some money to file. The amount depends on each court. Usually anywhere between 80 and 130 bucks, give or take. The service is a separate cost and can run around $65 or so.
- If the person filing the Complaint cannot afford the fee, there is a way to file without it – check the local court rules. It’s called “in forma pauperis.” As a Defendant, this matters to you because the Plaintiff may be seeking court fees. If they’ve filed this way, they cannot seek to collect money from you that they did not pay.
- The Service: You are then “served” with a copy of the Complaint.
- This is a very important step; you may have heard of it referred to as “due process.” It must be done correctly.
- When it is complete, it will be evidenced in the court record.
- They will attempt to serve you personally, which means handing the documents to you, but they can also give them to anyone at your home (within reason, but it does not have to be a relative or any party in particular), and if that fails after many attempts, they can serve you other ways.
- The Answer: This is the response to the Complaint.
- Timing: Each state is different on the timeline requirements to respond. In South Carolina, you have thirty days to respond to court service. This means that once the above step is complete and you have been served, the clock begins to run – you now have 30 days to respond. In some states, such as Ohio, it’s 28 days.
- You will need to respond to each item in the Complaint. You will affirm or deny each item. You do not need to write a compendium to respond. This is not where you prove your innocence. This is your one and only chance to raise any potential defenses that you will prove (or make the Plaintiff prove) later on.
- If you are filing this yourself, without an attorney, you are called a “pro se” litigant. “Pro se” means “of or for oneself.” Not to be confused with “per se,” which means “in and of itself,” “by existing in itself,” or to paraphrase, just by the sake of existing (example: “Snakes aren’t venomous per se, not all carry venom.”). “Pro Se” = a person representing herself in court. If the court refers to you in this manner, they know you do not have an attorney.
- You will serve this Answer to the Plaintiff AND the court.
- Check the summons carefully to see what it says; it may have specific instructions on timing and methods of responding. Some courts allow you to respond by fax, some allow you to send a response by certified mail (certified mail costs about 5 bucks at the post office – does not need to be return receipt / signature/etc – just certified mail with the tracking on it so you can check if it was delivered online). For fax, you can use online fax options as well (humblefax is a great one).
- Warning: If you do not answer, you are subject to a default judgment. If you just ignore the Complaint, you are ignoring your only chance to defend yourself, or to disagree with the amount of damages.
- Once a default judgment is entered against you, you can no longer claim the amount of damages is incorrect!
- Then what? This is where things get less straight forward and depend on the actions of the parties.
- Next Steps: After the Defendant files an answer, the court usually sets a time for the next event. This may be a trial, or an assignment to mediation (conducted by a judge or court attorney/appointed mediator – just as official as a trial), or a number of other things. I have seen courts assign bench trials within a couple hours of filing an answer, for trial dates 14 days away – this is extremely fast. The other options are generally left for parties who have hired attorneys as it can get complex.
- Trial: bench trial or jury trial are the options.
- Bench Trial: this is where just the judge decides the case.
- Jury Trial: this is where you get a jury of people. You must ask for this at the time you file your answer, and you must file a jury deposit (this can be a few hundred dollars). You can request one later, but must look at the local court rules to see the timing – there is a deadline before a trial to request a jury trial.
- Warning: Once you request a jury trial, you cannot remove the request very easily. You cannot remove it unilaterally, either. Even though YOU may have requested the jury trial, YOU cannot later decide you’ve changed your mind; once it’s been added, both parties get a say in removing it. You’ll need leave (an agreement) from the Plaintiff to remove it.
- A jury trial is much more complex, and you’ll have extra things to show up for, such as a jury strike.
- Trial: bench trial or jury trial are the options.
- Discovery: At this time, you should draft up discovery requests. These get served on the Plaintiff – not the court.
- Depending on what kind of case you have, think about what evidence you need, what evidence they are relying on, that shows either your guilt or innocence, or that shows the amount of damages, etc.
- For instance: if you are being sued for defaulting on a credit card, you would want to send discovery requests for production of your accounting. You would want to see your statements so you can be sure the amount in the complaint matches what you actually owed.
- They may also serve you with the same.
- Timeline: If you have been served with Discovery Requests, the time to respond is the same as the initial Complaint/Answer: South Carolina has 30 days, Ohio has 28 days, etc. Check your local state’s rules to find out what applies in your area.
- If you do not respond, you are admitting the things in the discovery requests – generally if the other party serves discovery, they include “requests for admissions” which will contain questions such as, “admit that you have no defense to this action,” “admit that you have done all the things in the complaint,” or “admit that you owe $xyz to the Plaintiff,” etc. Failure to respond means you are admitting to whatever they inserted in there.
- Responses to Discovery:
- You can object to questions you have been asked in Discovery. Common objections:
- vagueness
- information is already in the possession of the Plaintiff
- argumentative
- evidence marshalling
- premature (they are asking you questions you cannot answer yet – such as demanding a defendant respond to questions that you can only answer once your own discovery is completed)
- not calculated to lead to the discovery of relevant, admissible, evidence (they may ask you about where you work or previous criminal charges – this is a good response for those)
- unduly burdensome or costly
- legal conclusions (where the question is one of legal analysis – “admit your defenses have no merit.”)
- etc.
- Motions: These are requests to the court to perform some action based on the pleadings or in response to something (such as Discovery).
- You may receive evidence that there is some fault with the case or the pleadings.
- You may receive back discovery that shows some fault.
- In many instances, you may wish to file a Motion. There are many times and they do different things. Motions generally come with some fees (check the local court rules for the fees).
- Motions are NOT for disputing facts or arguing about your case.
- Some common motions:
- Motion for continuance
- Motion to dismiss
- Motion for leave to file an amended answer
- Motion for summary judgment
- All motions are served to the court and to the other party/parties, unlike the discovery requests/responses.
- Proposed order: many courts also require that you file a proposed order with very specific instructions for what it should look like – down to the font and spacing.
- Responding to motions: Motions give the other party an opportunity to respond. You don’t always need to respond, but if you do:
- Memorandum in support/opposition: other than for a very short motion (like a motion for continuance) you’ll need to draft one of these to go with your motion. This is the law and case law that supports your stance. It should be to the point – not lengthy, not story telling, but listing out the law, listing the supporting case law that shows your are correct, and then briefly stating why your case fits that case law and the court should follow that here.
- If you need to reference some evidence, reference is an an EXHIBIT in your memorandum or pleading. “Exhibit A.” Then, after the last page of your document, add another page, don’t forget to mark it as the EXHIBIT name (put a large “EXHIBIT A” at the top of the page), and insert your evidence on the page. If it’s something other than something you can insert into a paper document (like a recording), contact the clerk at the court to ask how they want you to enter that as evidence. The clerk’s info will be on the summons. They cannot guide you in law, but they are really good at helping with questions specific to that court and its rules.
- Lastly, for all pleadings – make sure you always honor the Court. Capitalize the “Court.” Ask – request, not demand – everything “respectfully.” The judge has earned her position and will respect and appreciate your deference to what their job is. They cannot advise you on the law, but at the magistrate level, where most pro-se litigation occurs, they will usually be a little more lenient with you for the sake of equity if you can be respectful of the court and make a good demonstration of your case.
- Eventually, you will either settle, have the Complaint dismissed for some reason, or end up in trial/litigation.
- Defense Litigation Notes for South Carolina and common Affirmative Defenses:
- In the US, the SCRA requires that default judgments must have been filed with an SCRA affidavit, showing whether or not the defendant was in the military. A judgment will be thrown out if one was not filed. Look up 50 U.S.C. App. §521(b)(1).
- In South Carolina, the plaintiff must show that it filed a Notice of Right to Cure. Look up SC Code § 37-5-110 (2022).
- Duty to Arbitrate (see the language in the contract)
- Estoppel or Laches – they took too long to bring the suit
- Accounting – if it’s a creditor, they need to provide an accounting or some evidence of the obligation (it should be part of your response if it’s that type of litigation, and you’ll have to submit discovery later to get full documentation from them)
- UPL = unauthorized practice of law. If it’s a business, it needs to be an attorney filing the Complaint. There is an exception for magistrates courts, but they have to file – at the time of filing the complaint – a non-attorney authorization form that must be signed by particular people in the company (any other signatures are not sufficient). Look up SC Code § 33-1-103 (2022).
- According to Rule 21, SCRMC and S.C. Code§ 33-1-103, a business can only be represented by a non-attorney in Magistrate’s Court if the business designates, in writing, a particular non-attorney to represent it in the particular action. “This designation must be in writing and must be submitted to the magistrate at the time the initial pleading in the case is filed by the party.” S.C. Code§ 33-1-103 (emphasis added).
- See also SC Code § 40-5-310 (2022) – UPL violations are a felony.
- Unclean hands – especially if it’s a UPL violation
- Impossibility or hardship (good for Covid 19 related issues)
- Failure to mitigate – there is a different version of this by state, but generally the plaintiff is obligated to mitigate its damages and any of its claims to damages that it suffered because of its failure of this duty are not recoverable
- Insufficiency of process – if you were not properly served (that due process above!)
- Unconscionability – look up SC Code § 37-5-108 (2022).
If you make mistakes, there are some emergency ways to undo them, but you really should consult an attorney at that point. These are the basics for civil litigation and to help you decide if you should call a lawyer when you’ve been served. If the Plaintiff has an attorney, you will be at an extreme disadvantage without one. In South Carolina, not all attorneys can help you with litigation – it must be one licensed specifically under section 403 for trial practice. Make sure if you consult with an attorney that you ask about their experience with litigation and whether they are a section 403 licensed trial attorney. Even if they are just helping you as a pro se litigant, you want help from an experienced litigator. The difference in the style, knowledge, and experience of law practice between a transactional attorney and a litigator are worlds apart.
These are just the basics. This is general litigation information and should not be relied on for any specific case. If you have questions, you should contact an attorney licensed in your jurisdiction. If you need help finding one, contact your state or county bar association. There are also many free legal aid resources – check your area to see what’s available. Even if they don’t seem to serve your location, they may have references to share.