Tuesday, February 2, 2010

Do you know? What to do when you get sued

When you are sued in an employment case, the absolutely first thing you should do is call your lawyer. There are steps that must be taken as soon as you receive notice of the complaint, the failure of which could put your entire defense at risk.

  1. An answer or other response must be timely filed. You could waive the right to file certain counterclaims and raise certain jurisdictional and other defenses by missing this critical deadline.

  2. If you want to remove a case from state court to federal court, you only have 30 days to act. This is a hard and fast deadline, with no extensions possible. Counsel needs to be involved early to analyze whether the case is removable and to prepare the necessary paperwork.

  3. A litigation hold should be put in place to preserve emails, other electronic records, and paper documents that could bear on the litigation. Key documents should be gathered and secured. Your attorney can help make sure that documents aren’t deleted or destroyed, a flub that could submarine your entire case.

  4. Witnesses should be identified, and told that they should not communicate with anyone other that counsel about the case. If any employee is at risk for leaving your organization, potential testimony should be memorialized in an affidavit while the employee is still on favorable terms and under your control.

  5. If you have EPLI coverage, you should put your carrier on notice so that coverage is not jeopardized and any defense costs are properly credited against your deductible.

  6. Depending on the size and notoriety of the case, you may want to get out of the blocks early with some public relations. That message has to be crafted and managed by counsel so that it does not hurt a successful defense.

Tripping on any one of these important early steps can have serious consequences on your overall defense. Resist the D.I.Y. urge and lawyer-up as soon as you find out you’ve been sued.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.