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ANSWERS TO FREQUENTLY ASKED QUESTIONS ABOUT RESPONDING TO A CIVIL COMPLAINT

(a) What happens if I do not respond after being served with a complaint?

If someone does not file an answer after being served with a complaint, he or she may be held in default. This means that a default judgment may be entered against them for the relief demanded in the complaint. The time period for answering differs depending on the specific jurisdiction, court and nature of the case. However, in most cases, a defendant has between 20 to 30 days to respond. To avoid being held in default, a defendant needs to: (a) prepare an answer; (b) send a copy of the answer to the plaintiff's attorney (or directly to the plaintiff if the plaintiff is self-represented); and (c) file the original answer with the court, with proof of service.

(b) What should I include in an answer?

Your answer sets forth, in brief, numbered paragraphs, your position regarding each of the allegations contained in the Plaintiff's complaint. For detailed information regarding the contents and form of an answer, read the Answering a Complaint section of our site.

(c) Other than Denying the Allegations in the Complaint, What Should I do to Respond?

It is common for answer forms to set forth what are known as "affirmative defenses". In fact, it is essential to set forth any applicable affirmative defense, because failure to include it in your answer might result in a waiver of that defense! The answer forms that are available for download on our site include affirmative defenses that may be appropriate for you based on your locality and the nature of the complaint to which you are responding. Some of the most important affirmative defenses include:

  • Lack of personal jurisdiction;
  • Improper venue;
  • Accord and satisfaction;
  • Statute of Limitations;
  • Assumption of the risk;
  • Unclean hands;
  • Fraud;
  • Duress;
  • Payment

The affirmative defenses set forth above are just a few of the many affirmative defenses that can be used to successfully defend against a civil summons and complaint.

(d) What is a counterclaim?

"The best defense is a good offense"
A counterclaim is a claim presented by the defendant against the plaintiff. Depending on the state in which your case is pending, a counterclaim may be "compulsory" or "permissive". A compulsory counterclaim is a cause of action that must be included in your answer. Typically, compulsory counterclaims are those that arise from the same occurrence or transaction that is the subject of the complaint. A permissive counterclaim is a claim against the plaintiff that arises from something other than the occurrence which is alleged in the complaint. A permissive counterclaim may - but does not have to be - included as part of the answer form.

(e) What happens after I file my answer with the court?

In most instances, you will receive a notice by mail advising of your initial court date. Typically, that is not for trial but, rather, for an initial conference. The initial court conference usually involves scheduling matters, such as discovery (the exchange of document demands, interrogatories, depositions, etc.).
 

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