Lawsuits Against LEOs: To Protect and …..Be Served!!

Now I will admit that some of the most fun I had working as an Investigator with the Cobb County Solicitor General’s Office was spent serving subpoenas.  While most of the time, the process was straightforward, my favorite cases involved the folks who wanted to avoid being served. I posed as a disgruntled customer, a neighbor and a careless driver who hit a car in the parking lot. Bottom line, anyone can be served!

When it comes to lawsuits, service of process is extremely important. Although you may be accustomed to receiving subpoenas through interoffice mail or some other informal method, being served with a lawsuit is serious business. Our legal system has strict rules about the service of lawsuits. The reason for this is a recognition that the court does not have any authority over you until you are properly served. This is a concept called personal jurisdiction. There are complicated rules about who can serve lawsuits, where the suit must be filed and what court can hear the suit. In short, the person filing suit must properly navigate the rules or he is out of court. Once you are served with the lawsuit, you have your own set of obligations with serious consequences if you fail to act properly.

When you are served, the clock starts ticking! You have 30 days, 20 days in federal court, to file an answer to the allegations in the suit that contains, in most instances, all legal defenses to the lawsuit! This is a short period of time in which you must gather important documents, verify the allegations in the lawsuit and decide what legal defenses you may raise. For more information on my suggestions on how to shorten the process of gathering important documents, see my previous blog post on this topic.

You also have a limited amount of time to decide whether you can or want to file a counterclaim. In most instances, you must file the counterclaim with your answer. I am a big fan of counterclaims against people who sue LEOs. However, if you wait too long, the court may reject your counterclaim.

By now, you realize that you should contact a lawyer when you are served with a lawsuit. In another post, I’ll discuss whether you should notify the legal adviser for your department, the attorney for your government entity or a private attorney. For now, I’ll post my list of tips regarding service of process.

1. Never authorize anyone to accept service of a lawsuit on your behalf without speaking with an attorney;
2. If you are served, immediately take everything you are given when you are served and place it into an envelope;
3. Immediately write down the following on the envelope: the date and time and a description of the person who served you;
4. Get your calendar and make three notes: the day you were served, 20 days after you were served and 30 days after you were served. Write those three dates on the envelope;
5. Bring all of the documents you received to your chain of command AND your own attorney. If you are a member of the Fraternal Order of Police, contact your lodge president for an appointment with the lodge attorney. If you are a member of the Fraternal Order of Police Legal Defense Plan or you have your own professional liability insurance, notify the plan representative or your insurance company as required;
6. Make certain that you have all of the relevant documents and evidence like incident reports, indictments, and video recordings available for the attorney;
7. Do not sign ANYTHING without checking with an attorney;
8. Follow up with the attorney to make certain that an answer was timely filed on your behalf. The attorney should not be at all upset with your efforts to stay on top of the case;
9. Do not discuss the details of the lawsuit with anyone except your attorney or your chain of command as ordered to do so;
10. Direct all media inquires to the department’s chain of command or public information officer.

Remember that the filing of a lawsuit does not mean that you did anything improper. Stay focused on your job and staying safe. Let the lawyers handle the details!

Stay safe.