The first 48 hours after you've been served

Most lawsuits are not lost in a courtroom. They are lost in the first week, by people who did perfectly reasonable things that turned out to be mistakes. After twenty-five years of trying cases I can tell you that the gap between a strong defence and a weak one is usually decided before a lawyer is even hired. So here is what I tell every business owner who calls me with a complaint in their hand.

First, read it, all of it, and note the date you were served. Deadlines in litigation run from that date, and they are unforgiving. In Illinois state court you generally have thirty days to appear; in federal court it is twenty-one. Those are not suggestions. A default judgment is a real thing that happens to real companies because an envelope sat on a desk.

Second, do not call the other side. I know the instinct. You have a relationship, you think it is a misunderstanding, you believe a conversation will sort it out. Occasionally it does. Far more often you say something that becomes Exhibit 4. Everything you say to an adversary after a complaint is filed is being said to their lawyer, whether or not their lawyer is on the line.

Third, do not throw anything away, and do not tidy up. The moment litigation is reasonably anticipated, you have a legal duty to preserve documents, emails, messages and data that might be relevant. Deleting the angry email you sent in March does not make it disappear; it makes it the centre of the case. Tell your team in writing to preserve everything and suspend any automatic deletion.

Fourth, do not post about it. Not on social media, not on your company blog, not in an industry forum. I have watched a defensible case become indefensible because a founder wanted the last word on a Friday night. Silence costs nothing. Commentary costs a great deal.

Fifth, gather the story while it is fresh. Write down, for your lawyer only, what happened in order, with dates, names and the documents you remember. Mark the document privileged and send it to no one else. Memories fade fastest in the first month, and the version of events you can reconstruct in week one is worth more than anything you will recall in year two.

Sixth, call a lawyer now, not Monday. A good litigator will want to see the complaint before you have done anything, because the earliest decisions, whether to answer or move to dismiss, whether to counterclaim, whether to open a conversation about settlement, are the ones with the most leverage. The window is short and it does not reopen.

Finally, breathe. Being sued feels like an accusation of character. It is not. It is a dispute, and disputes have procedures, and procedures reward the calm and the prepared. Most cases settle; the ones that do not are won by whoever did the unglamorous work earliest. Do the work in the first 48 hours and you will have given yourself every advantage the law allows.