What Does it Mean to “Answer” a Lawsuit?
You've received a collection lawsuit and the first page (titled the “summons”) has stated you must file a written answer within 20 days (more details, below, on small claims cases). What is a “answer,” what should it say, and how do you file it? These are all common questions consumers have after they've been sued. If all of this is confusing or overwhelming, schedule a free consultation here.
What is an “Answer”?
An “answer” is a written response to the lawsuit. Wisconsin statute (Wis. Stat. § 802.02) requires the following responses to each claim and fact asserted in the complaint:
“A party shall state in short and plain terms the defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. The pleader shall make the denials as specific denials of designated averments or paragraphs, but if a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder.”
What Does an Answer Look Like?
An answer needs to have specific information on it (for a full list of the details, read here):
- The correct “case caption,” identify the correct county, court, parties, and case number.
- A truthful and accurate responses to each claim and/or fact asserted by the plaintiff.
- List of the affirmative defenses applicable to the case.
If the defendant does not fully and properly respond to the lawsuit it can result in something called a “default judgment” (an automatic win for the company that filed the lawsuit). The contents and language used in an answer matters – one wrong or incorrect response can cause you to lose the entire case.
What are “Affirmative Defenses”? Do I Need Them?
Wisconsin statute provides for something called “affirmative defenses.” These are legal arguments and doctrines that provide a defense to your liability in a lawsuit. Think of them as a legal argument that “blocks” or prevents a plaintiff from winning in a lawsuit. Here are the defenses listed in Wis. Stat. 802.02(2):
accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of a condition subsequent, failure or want of consideration, failure to mitigate damages, fraud, illegality, immunity, incompetence, injury by fellow servants, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, superseding cause, and waiver.
There are other defenses outside of the options listed in the statute. Affirmative defenses are a critical opportunity to protect your legal interests. A defendant should never list every affirmative defense in existence, in an effort “to play it safe.” Such an approach can trigger a rejection of all the affirmative defenses; not to mention the appearance that none of the affirmative defenses have merit. A properly asserted affirmative defense may cause you to win the case; don't miss asserting them.
Who/Where do I Send the Answer to?
The first page of the documents you received (called the “summons”) will list the address for the Clerk of Courts for your case. It will also list the contact information for the plaintiff and/or the plaintiff's attorney, if they have one. You'll need to send the answer to the Court and the plaintiff/plaintiff's lawyer. Make copies of everything you mail – so you have a record.
Electronic Filing and Registration
When you were served the lawsuit, you should have received a page of information about “electronic” filing and registration. This option is worth considering; you'll save on postage, mailing, and instantly receive copies of documents filed in your case. The “electronic filing” system is somewhat like an online filing and document exchange website – it allows the parties and court to have an official way to file, view, and provide the documents to each other (sometimes called the court “docket”).
If you register for electronic filing in your case, you can file your “answer” and “affirmative defenses” electronically, and won't need to mail them to the court and other party/attorney.
Small Claims – I have to Appear in Court to File My Answer?
If the summons (that first page of the lawsuit) says you need to appear to answer the lawsuit, you do indeed have to appear. Plan plenty of time for that court appearance as there will be a large number of cases happening in that same window of time. For example, if your summons states you need to appear at 9am, there may be hundreds of similar cases scheduled for 9am that morning. Don't be surprised to see a large number of people present. Planning a few hours of time for your court date will ensure that you don't miss work, or other matters.
Do I Need a Lawyer?
You are allowed to represent yourself in court, and many people do. Here are some of the reasons to consider hiring a lawyer:
- You don't mess up the “answer” and give the plaintiff an automatic win.
- You don't miss an important “affirmative defense” that can help you win the case.
- You don't mess up following court procedures.
- You don't have to take time off of work to attend court.
Most people are not familiar with court procedures and processes; making the navigation of the procedures both difficult and stressful. Missing deadlines, not understanding the legal jargon used in documents, and being unfamiliar with the rules of the court system, can all lead to losing your case. And you might have claims to bring against the company that sued you – called a “counter-claim.”
What are the Benefits of Hiring a Lawyer
First, you are not responsible for filing written documents with the court or appearing at court. This means no missed work and no missed deadlines.
Next, your written responses are done correctly and in compliance with the applicable state statutes. Losing your case and being garnished because you failed to fill out the paperwork correctly is a real issue; don't let this happen to you.
Third, a consumer lawyer can engage in something called written discovery. Written discovery requests are formal demands for documents, information, and/or interviews (called a deposition) from the company that sued you. This is often called “making them prove the debt” by consumers. Effective (and legally proper) written discovery is a key to making sure the creditor has followed the law. Our office always engages in immediate written discovery when defending a lawsuit.
Lastly, a consumer lawyer will be looking at all the documents and information to make sure the creditor has followed both state and federal consumer protection laws. If they have violated any of those laws, you may have a “counterclaim” against the company that sued you. Suing the creditor back certainly “turns the tables” on them. Our office regularly sues debt collectors and creditors for violating state and/or federal laws.
What to Expect during a Free Consultation
During your free consultation we'll go over the following:
- What creditor/debt collector has sued you.
- Details (if you know them) from the facts in the lawsuit.
- What affirmative defenses you may have.
- What lawsuits you could bring against the wrongdoer (and what to expect from the case).
Will this Cost Me Anything?
Our initial consultations are always free. We take some lawsuit defenses cases on an hourly basis, while others we take on a contingency basis. During the free initial consultation we'll be able to make the determination of the type of case you have, along with potential routes for a defense.