You Run a Community-Based Nonprofit – What to Do When You Have an Accident, Claim or Lawsuit, Part 2

This is the second of a two-part series on what non-profits should do when a lawsuit is filed against them.|

February 15, 2012

This is the second of a two-part series on what non-profits should do when a lawsuit is filed against them. Part 1 of this series can be found here. What Are All of These Papers? Let's look at the lawsuit itself. When a lawsuit is served, there are two different parts: a summons and a complaint (or some other name). The summons is a notice to you and/or your organization that you have been sued. The complaint tells you what the suit is about and what the person suing wants. The Summons: The top paper is the summons. The summons is a very important piece of paper. It tells you who has filed the lawsuit, what attorney represents that person and what court the suit will be heard in. The summons will also tell you exactly who is being served. The Complaint: The complaint is all of the rest of the papers you receive except for the top page, or summons. In some cases other documents will be included with the complaint. A statement of damages (usually a huge number, unrelated to the merits of the case), and a notice from the court extolling the virtues of arbitration or mediation are the most common attachments. The complaint is a description of all of the bad things you are supposed to have done to the plaintiff and what they have suffered as a result of your actions. Generally speaking, it is not a good idea to read the complaint right away. Most people get very upset at what the lawsuit claims to have happened. Remember, lawsuits are all written in the same manner and use the same type of language. Many counties have adopted a "fill in the blank" form complaint where boxes are checked and a few paragraphs describing the particular event leading to the specific lawsuit are inserted in the appropriate places. Remember that most of the language used is standardized from complaint to complaint and while this particular one may rant and rave about you or your organization, you will be comforted to know that all complaints rant and rave in the same fashion. What Are the Steps in the Lawsuit Process? What is Discovery? Discovery is the process during which both sides find out what the other side knows. There are several standard and common discovery procedures which occur during the course of a lawsuit. Initially, your attorney may wish to meet with you or the relevant staff people and get a feel for your version of what happened. If the incident that is the basis of the lawsuit was already investigated by a representative of your insurer, the attorney assigned to the case may not need to meet with you right away. Do not, under any circumstances, speak with or give information to the plaintiff, or his or her attorney. Interrogatories: There are two types of interrogatories, form and special. Form interrogatories are just what the name implies; standardized questions on a preprinted form. In most cases, form interrogatories can be answered by the attorney with a little help from you. Your attorney will send form interrogatories to the plaintiff(s) that ask the injured party for the names and addresses of all treating physicians, documentation of any lost earnings claimed, and so on. Special interrogatories are questions that address more specific issues concerning the particular lawsuit. Your attorney will probably need your specific help in preparing answers to special interrogatories. It is very important to give prompt and full attention to these questions so that your attorney can do the best possible job of representing you and your organization. When you receive the interrogatories, either form or special, you are required to answer them to the best of your ability. These answers are under the penalty of perjury. This means that lying or omitting information may be grounds for criminal action. There will be some occasions where obtaining or finding old records will be very difficult, time consuming, and a real pain in the neck. Unfortunately, the courts do not recognize any of these as legitimate reasons for not providing all of the documents or information requested. We have found that the sooner you attack this project, the easier it is to complete. Again, if you are having a problem complying with the request for documents, contact your attorney sooner, not later. Depositions: A deposition is the giving of testimony under oath. This occurs outside of court and before trial. In most lawsuits, depositions are scheduled informally and without subpoenas. The plaintiff's deposition usually is conducted at the plaintiff's attorney's office and the defendant's deposition in the office of the defense attorney. While your attorney will make every effort to accommodate your schedule, you must attend a deposition for which you have been scheduled, no matter how inconvenient. Depositions may last anywhere from less than an hour to several days. Most are completed in half a day. Your attorney will meet with you before your deposition to go over the process and to review what questions are most likely to be asked. This is also a time to ask any questions you have concerning the case. Depending on the case, there may be depositions of people on your staff or from your organization. It is very important that your attorney have the cooperation of your organization and that you make your staff available when necessary. Will the Case Go to Trial? Probably not. The good news is that about 97% of all lawsuits are settled or resolved in some fashion before going to trial. The remaining 3% are tried to verdict. There are several processes by which resolution, short of trial to verdict, can occur. Mediation: One of the most common ways to settle a lawsuit before trial is mediation. The parties agree to have a neutral third party manage discussions leading to an agreement to settle. Mediators do not decide cases. The parties reach agreement with the help of the mediator. In some cases you may not even have to attend the medication. Arbitration: Other cases are resolved by the use of arbitration, either binding or nonbinding. In the case of binding arbitration, the parties have agreed that whatever finding the arbitrator makes is permanent and agree to abide by those decisions. In non-binding arbitration, the decision of the arbitrator is advisory only. Trial: Most cases that actually go to trial, go for one of two reasons. One reason is that the plaintiff wants far too much money for the nature of the injury and no agreement can be reached between the parties. The other common reason cases go to trial is when the defendant is convinced that either the obligation owed to the plaintiff was met, or that no duty to the plaintiff ever existed, and the plaintiff has no right to recover anything from the defendant. It is very important that you or an appropriate member of your organization be present in the courtroom during the trial. We understand that the entire lawsuit process, up to and including a trial, is a major inconvenience. But, it is very important to the success of your lawsuit that each step of the process is taken seriously, including attending the trial, if necessary. Your attorney will make every effort to accommodate your schedule, but often there is little that can be done to change the court's schedule. Summary