A lawsuit begins when a person or company files a summons and a complaint (or petition). The person or company that filed the lawsuit is called the plaintiff or petitioner. If a lawsuit is filed against you, you are the defendant or respondent.
The summons lets you know that a lawsuit has been brought against you. The summons also lets you know what you must do to respond.
The complaint tells you what the lawsuit is about. It also tells you:
- What the plaintiff thinks happened
- The laws that support the plaintiff's claims
- What the plaintiff is asking for
Appearance and answer
If you are properly served with a summons, you have to file an appearance and an answer to protect your rights in most types of civil cases. However, you will not go to jail or get fines if you do not respond.
An Appearance tells the court and the plaintiff that you know about the lawsuit filed against you. It is a formal statement that you are going to participate in the court proceedings.
An Answer responds to the plaintiff's complaint. The complaint lists the plaintiff's reasons for suing you. The answer responds to each reason.
You do not have to file an answer for the following cases, unless the court orders you to:
- If the lawsuit is for $10,000 or less, you don't have to file an answer in Cook County. These cases are called small claims.
- If you are a defendant in an eviction case, you don't have to file an answer.
A summons will usually tell you when you need to come to court. If you do not appear in court on time, you will lose the case and a default judgment may be entered against you. If you appear in court, the judge will tell you when you need to file your answer. It will usually be 10 days from your court date.
In lawsuits for more than $50,000, the summons will state that you must file an appearance within 30 days after the day you are served. After you file your appearance, you will then need to file an answer. You may want to talk to a lawyer before filing.
The answer is also the document where you can argue affirmative defenses. An affirmative defense is an argument that you make that is a reason the plaintiff should not win the case. For example, a person has a certain amount of time after something happens to file a lawsuit. This is called a statute of limitations. If the plaintiff files a lawsuit after the statute of limitations ran out for their case, you would include this in your answer as an affirmative defense. If you file your answer without affirmative defenses, you can't make them later.
The answer is also where you include any counterclaims. Counterclaims are legal claims that you have against the plaintiff/petitioner regarding the issues in the case. For example, if someone sues you for damage to their car from an accident you were in, you could file a counterclaim against them if you think that they were at fault and owe you money instead.
You may want to consult with a lawyer about whether you have affirmative defenses or counterclaims.
If you are required to file an answer/response and you do not, the judge will find you in default, and may decide in favor of the other party.
Note: If you have a legal reason to challenge the way the summons and complaint/petition were delivered to you (service of process), or a legal reason to have the complaint/petition dismissed, you need to file a motion before you file your answer/response to the complaint/petition. You should consult with an attorney about this if you think it applies to you.
Requesting a jury trial
There are 2 ways to have a civil trial:
- Bench trial: the judge decides what he thinks happened, and then decides who wins the trial based on the law. This is called a bench trial.
- Jury trial: a jury decides what happened, and then the judge decides who wins.
If you want a jury trial, you have to ask for one. You should do this the first time you file something with the clerk.
In lawsuits for more than $10,000, you must ask for a jury no later than the date that you file your answer. In lawsuits for $10,000 or less, you must ask for a jury trial on or before your court date.
You can use the jury demand that is included in the appearance form or the separate jury demand form. If you file your request for a jury trial by these deadlines, then the judge must grant you a jury trial.
When you file your appearance, ask the cashier to stamp your form with the stamp that says jury in large letters. Or, if the lawsuit is for more than $10,000, you can file a separate jury demand form before or when you file your answer.
You must pay an extra fee for a jury trial. If you can't pay it, you can ask a judge to waive this fee and other court costs.
Filing an appearance
The first step in responding to a lawsuit is usually filing an appearance. An appearance form is a document that you fill out and file with the court clerk. The form tells the court and the other parties that you are responding to the lawsuit.
For most civil cases, a person is not legally required to respond. However, the plaintiff can win the case automatically if the defendant does not respond.
Filing an answer
An answer is a response to a complaint. You must answer each statement in the complaint, saying if you:
- Admit: agree with the statement
- Deny: disagree with the statement
- Agree in part and deny in part: state which part of the statement you agree with and which part you disagree with
- Lack the knowledge required to admit or deny: don't know if it's true
If you pick the last option, you must also attach to your answer a notarized affidavit saying that you do not know if the statements indicated are true.
You do not have to give only one answer for each numbered paragraph in the plaintiff's complaint. You can admit to parts of the paragraph and deny others.
In your answer, you can also make your own arguments about why the person should not win the lawsuit. For example, a person can say that the plaintiff has filed their case too late, based on the statute of limitations.
After you file your answer and appearance, you must mail copies to the other party. If the plaintiff has a lawyer, send the copies to their lawyer. Use the address on the complaint. If they do not have a lawyer, send the answer and appearance directly to the plaintiff.
If a default judgment is entered against you
If you file your appearance or answer late, it is likely that a default judgment will be entered against you. That means that the court let the plaintiff win the case because you were not there.
If the court enters a default judgment against you, you can ask the court to take it back by filing a Motion to Vacate Default Judgment.
You have 30 days to file this motion and show the judge that you had a good reason for not filing. After 30 days, it is much harder to remove the judgment, and you will probably need to talk to a lawyer.
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