Legalities

Legalities, a weekly column that appears in the Help section of the Southern Illinoisan, is a free service of the Self Help Legal Center. You can visit the Southern Illinoisan website at: http://www.southernillinoisan.com/

Q: I was involved in a fight with another person. The police issued tickets, but the local state’s attorney ended up dropping the case against both of us. Now the other person has hired an attorney and is suing me for $25,000.

It has been a couple of weeks since I was served the summons. I went to one attorney to see if she could represent me. I thought that since the state’s attorney dropped the case, it was no big deal. 

Anyway, the attorney I went to said she didn’t have the time but that I should write out my own response. The summons I was issued says that I only have a couple of days left to do that. What should I put in my response?

A: You have made a couple of big, but common, mistakes already. To avoid another big, but common, mistake, you need to act quickly.

Your first mistake, of course, was getting into a fight. No, this is not going to be one of those columns that discuss the pros and cons of physical confrontation. Rather, getting into a fight can land you in a lot of legal trouble.

First, a lot of people don’t realize that their homeowner’s insurance or insurance through their employer may not protect them from the health or other injuries that result from a fight.

Second, in addition to a civil lawsuit, you could face criminal prosecution for either assault and/or battery. This didn't happen in your case, but it could have happened.

Your second mistake was thinking that just because your criminal case was dismissed, a civil case would be dismissed as well. The burdens of proof as well as the remedies available in civil and criminal court are very, very different. What may appear to a prosecutor to be a bad case may appear to a civil attorney as a very good one.

Besides, $25,000 is a lot of money. It doesn’t matter if you think that the lawsuit is without merit, or even a sure loser. With that much at stake, you cannot afford to take any chances.

Finally, your third mistake was going to just one attorney. You may not believe it, but you are in serious trouble. You are being sued for a lot of money, you probably don’t have insurance that will cover your loss if you lose, and the other side has an attorney. You need to get an attorney and fast. There are hundreds of attorneys in southern Illinois. You shouldn’t call one and if she can’t help, give up and do it yourself. You should keep calling.

Having said that, if you really cannot find an attorney in the time you have to file a response (typically 30 days), then yes, you should file some type of response, so you won't be held in default. Being held in default usually means that the other side wins and you lose. There are risks, however, with filing your own response.

First, to file your own response, you would need to respond to each allegation in the plaintiff's (the person suing you) complaint or petition. Typically, the response is either that you admit, deny, or don't have enough information to respond. The problem is, if you don't answer a particular allegation in the right way, you may end up admitting to something that could hurt your case later at trial.

Second, when you file your own appearance or response, you may be waiving certain defenses (like lack of jurisdiction) or arguments that must be raised at this time.

This is why it is always better to have an attorney file a response for you instead of doing it on your own.  If you really have no other choice, however, and insist on filing your own response, you need to do two things.

First, make sure that you read the allegations in the plaintiff's complaint carefully as you write out your responses. If you don't understand a particular allegation, then say so. Don't guess or assume. If you don't know whether something is true or not, then say that.

Second, after you write out your response, you will need to file it with the circuit clerk in the county where the original case was filed. The deadline that appears on your summons is the deadline to file, not write, your response. After you file your response, mail a copy to the other side's attorney and keep a third copy for yourself.  You will need this copy for when you go to trial.

 Do you have a legal question? Write us at Self Help Legal Center, SIU School of Law, Mailcode 6804, Carbondale, Illinois or e-mail us at selfhelp@siu.edu. Not all questions will be answered and may be edited for space or content.

Legalities is written by the Self Help Legal Center, a public service of the SIU School of Law. The Self Help Legal Center cannot provide legal representation. It can, however, help you find the answer to your legal problem. This column is for general legal information purposes only and the advice given in this column may not apply to your situation. For specific legal advice about your situation, you should consult an attorney licensed to practice in Illinois. This column is not meant to give legal advice and does not create an attorney-client relationship.