What to Do if You Get Sued

No matter what kind of business you run — a restaurant, a store, an apartment building, a service provider — personal injury lawsuits are, unfortunately, a cost of doing business. Most personal injury claims against businesses arise when a customer suffers an injury while dealing with the business in some way, such as slipping and falling on the premises or being struck by a company vehicle. While being served with a lawsuit is unsettling, the steps a business takes in the early days of litigation can significantly influence its outcome. If you’re a business owner facing a personal injury suit, our North Carolina personal injury defense attorneys generally advise considering the following steps: 

Understand the Complaint and the Deadlines 

A lawsuit begins when a defendant is served with a summons and complaint. In many cases, the defendant receives a demand letter before officially being served, so the summons and complaint might not come out of nowhere. Regardless, defendants in personal injury actions in North Carolina have 30 days to file their answers to complaints. Failure to timely file an answer can result in a default judgment. When reading the complaint, keep in mind that the allegations therein are not factual findings — you will have an opportunity to rebut each and every one of the plaintiff’s claims. 

Notify Your Insurance Carrier 

Personal injury claims may be covered under a business’ insurance policies, including commercial general liability policies and business owners policies. Under those policies, the insured must provide prompt notice of the lawsuit, which the insurer may have a duty to defend (i.e., appoint and finance defense counsel). As with filing an answer to the plaintiff’s complaint, time is of the essence here — delay in notifying your insurance carrier can result in refusal to cover the claim. At the very least, it can complicate the insurer’s investigation, as crucial evidence could go stale or wind up missing. 

Preserve Evidence 

Once a business suspects it will be involved in litigation — and certainly once a lawsuit is filed — it has a duty to preserve all relevant evidence. Failure to preserve evidence (or worse, intentional destruction of evidence) is considered spoliation and can result in court-imposed sanctions. Generally, preserve the following evidence (as applicable): 

• Digital evidence, such as surveillance footage and access-control records
• Physical evidence, such as an allegedly defective product
• Documentary evidence, including internal accident reports, employee statements, and company manuals 
• Maintenance records, including inspection reports and vendor service records
• Communication records, including emails and texts among employees and with third parties 

In some instances, it is a best practice to implement a “litigation hold.” This generally involves suspending automatic deletion of data (e.g., surveillance videos) and directing employees not to modify or discard any materials that could be relevant to the litigation. For more information about implementing litigation holds, please contact a North Carolina personal injury defense attorney. 

Do Not Speak to the Plaintiff or Their Attorney on Your Own 

Even after litigation has begun, you may be contacted informally by the plaintiff’s attorney seeking information. If that occurs, resist the urge to respond. Speaking to the plaintiff’s attorney without your own attorney present carries great risks. For example, a statement that might seem like an innocuous explanation to you could be interpreted as an admission of liability by a plaintiff’s attorney. Instead, route all communications to the plaintiff and/or the plaintiff’s attorney through your own attorney. If you have not retained legal counsel and are being contacted by a plaintiff’s attorney, you can mitigate the risk of inadvertently harming your case by working with a North Carolina personal injury defense attorney. 

Be Honest With Your Defense Attorney 

During the early weeks of a personal injury lawsuit, your defense attorney will be busy reviewing the plaintiff’s allegations, investigating the facts independently, interviewing witnesses, and identifying potential defenses, among many other things. It is crucial that you provide your attorney with any information he or she requests and, more importantly, that you exercise candor in your responses. Hiding damaging facts from your defense attorney can cause more serious damage to your case in the long run than disclosing them early, as it is much easier for your defense attorney to strategize around weaknesses if he or she knows them at the outset. 

Consider Settlement vs. Litigation 

One of the first strategic decisions you and your attorney will make after being sued is whether to pursue a settlement or litigate the claim. This decision depends on a number of factors, including the strength of the plaintiff’s claims, the defenses available to the defendant, the cost of settlement vs. the cost of litigation, and the risk of reputational harm to the business, among many others. Your defense attorney will identify the strengths and weaknesses of the case and advise you on the most advantageous course of action. 

Prepare for Discovery 

Discovery — the process through which each party gathers evidence from the other side — is often the longest and most expensive phase of litigation. Common discovery tools include: 

• Interrogatories: Requests for written responses
• Requests for production: Demands for emails, photos, documents, etc. 
• Requests for admissions: Demands to admit to certain facts so as to narrow the scope of the dispute
• Depositions: Formal, sworn interviews in which witnesses answer questions from attorneys outside of court

Your attorney will handle many aspects of discovery, including preparing discovery responses, ensuring that disclosures are accurate but not overbroad, and objecting to improper requests. However, the burden of discovery will also fall on you, especially if you are called to a deposition. Moreover, the discovery process can drag on for weeks or even months, so make sure you are prepared for the long haul. 

Contact a North Carolina Personal Injury Defense Attorney

Perhaps the most important step you can take after being sued is to hire an experienced defense attorney. To get started, please contact a North Carolina personal injury defense attorney at Harris, Creech, Ward & Blackerby by calling 252-638-6666 or using our online contact form.