Articles for March 2013

YOU’VE BEEN SERVED…

You answer the door and a man hands you an official document and says “you’ve been served”. In your quivering hands are a summons and lawsuit papers. What do you do? This is not the kind of question you want to consider for the first time after the faYOU'VE BEEN SERVEDct. It is important to know how to conduct yourself prospectively in this situation to prevent any missteps. Do not panic or argue with the process server. He can’t (and likely won’t) help you. Accept service of the summons, but only if you are the correct individual the process server is attempting to serve. Do not accept service on anyone else’s behalf.

Avoid the temptation to immediately call your spouse, your best friend, or your boss. More importantly, strongly resist the additional temptation to simply vent to the nearest random individual. And perhaps most importantly, do NOT post anything about the summons served upon you, or the suit being brought against you, on any social networking website. Many people, especially those being sued for the first time, read the allegations in a lawsuit petition and are so personally offended or surprised by the allegations that they want to call the attorney bringing the suit to say “this isn’t true” or “it didn’t happen like that”. Keep silent and keep your fingers away from all keyboards, including that tiny one on your phone.

When you can no longer feel your heart pounding in your chest, read the summons and suit papers carefully. Make some notes for your attorney of what you believe are the most important points, especially as they relate to the allegations against you. These notes should be prepared for your attorney so that they remain privileged from discovery, and to help you and your attorney prepare your defense. If you already have an attorney, contact him promptly, since suit papers are time-sensitive and a formal responsive pleading must usually be filed within 30 days (sooner in some jurisdictions).

The issue or event over which you are being sued may not be fully known to you. In fact, it may be something for which you have insurance coverage. Do not presume that is not the case. Pull out your auto, homeowners, professional liability (if applicable) or other policies and contact the claims departments immediately to report the suit, because if you do have coverage for the allegations in the suit, timely reporting that to your carrier is also critical. If your carrier acknowledges that they do cover you for the allegations, they will likely assign a defense attorney to you, but you can also work with your own personal counsel at the same time. To help either your assigned or retained counsel, try to promptly locate any documents or records that you believe may be associated with the claim asserted and place them in a secure location. You are building a file to take with you to your attorney’s office.

Do not discuss the details of the suit or any of the allegations raised in the case with anyone besides your attorney. Your discussions with your attorney are protected by attorney-client privilege, but statements you make to anyone else are not. No matter how irrelevant or innocuous you believe your conversation with someone else may be, you should understand that the contents of any such conversations are discoverable. That means that you may later have to sit through a painful deposition listening to your casual words – flippant, confessing, insulting or otherwise — repeated on the record by the person with whom you spoke.

Those are the basic “rules of conduct” when you are served. Don’t panic, maintain silence, collect relevant documents, contact your insurance carrier, and call your attorney. Once the suit papers are in your hands, the outcome of the suit may be out of your hands – but you still play a vital role in assisting in your own defense.

 

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

IS THAT REALLY A POLICE CAR?

No matter where you are, the sight of flashing red and blue lights in your rearview mirror will make your heart race a bit faster. But what if you see those lights and the car is not marked in any way, or does not look like a typical police car?

IS THAT REALLY A POLICE CAR?

Many people, especially women, are taught not to stop if an unmarked car is trying to pull them over – at least not until you can do so in a well-populated or busy area. This suggestion is further advanced by a “story” currently making the rounds on Facebook and other social media sites about a woman being flagged over by a purportedly “unmarked” police car with flashing lights, who smartly dials “112” on her cell phone, putting her in touch with a police dispatcher who tells her that they have no cars in her area. She keeps driving and is finally saved when the real police show up and surround a would-be assailant pretending to be a police officer. While that particular story, and its common variations, may be just urban legend (especially the suggestion that dialing “112” will actually put you in touch with a dispatcher, which is not accurate), there are certainly stories of individuals who have attempted to impersonate police vehicles with light bars or other devices, and attacking people (especially women) who dutifully and automatically pull over at the sight of those lights. So the question remains, what should you do if that situation should arise? And what are the implications if you do NOT pull over and the vehicle is an actual police officer with a legitimate reason to stop you?

One consideration is that “failure to yield” to a police officer, or failure to obey the lawful direction of a police officer is generally a crime (or at the very least, a traffic offense) in most states, and can lead to fines and points or other impact upon one’s driver’s license. Would an actual police officer be understanding of an explanation about your fear of his unmarked vehicle? Will he give you a ticket even though you explain that you were taught by your parents not to pull over for an unmarked “police car”? When personal safety is at issue, and you can’t be completely sure of the motives or legitimacy of a car flashing what appear to be emergency vehicle lights at you, start by turning on your own emergency flashers, so that the “officer” knows you are aware of his presence and aren’t avoiding him. Try to pull over in a well-populated area if possible, or at least in a well-lighted area or a business parking lot. If you aren’t near a well-populated and well-lit spot, or otherwise still question the legitimacy of the vehicle, dial 911 on your cell phone and advise the dispatcher of your location, and that you are being pulled over by a car you cannot identify as an actual police car. At the very least, if it turns out to be an actual police officer decides to give you a ticket for “failure to yield” to him, you will have a timed and documented (911 recording) explanation of your rationale for not immediately doing so, which you or your attorney will likely be able to use to get such a charge thrown out.

Remember, while the odds are that those flashing lights in your rearview mirror is an actual police officer, if the vehicle does not look like a police car, don’t hesitate to think about your safety first.

 

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.