Frequently Asked Questions

What do I do if I get served with a lawsuit?

Contact a lawyer.  Service of a lawsuit on a party starts the clock ticking on the time in which an appearance or answer to the lawsuit must be filed.  Different types of lawsuits, and different courts, have different timing requirements for when an appearance or answer must be filed, and an attorney can let you know when your appearance or answer must be filed.  The second thing you must do is not ignore the lawsuit – it is not going away.  Failure to appear or answer a lawsuit can lead to the entry of a default judgment against you.

I had a default judgment entered against me – what do I do now?

If the default judgment was entered less than 30 days prior to you receiving notice of the default judgment, you may be able to vacate the default judgment.  As a general matter, courts prefer to have an issue tried on its merits as opposed to entering a default judgment, so a motion to vacate a default judgment within 30 days is often granted.  If the default judgment was entered more than 30 days prior to you receiving notice, you may still be able to vacate the default judgment, but the standards for doing this are higher.

My 12 year old son was served a lawsuit on my behalf – is this proper?

Most likely not.  Under Illinois law, an individual can be served by serving the named individual personally, or by leaving the summons at the individual’s usual place of abode with a family member or resident of the abode.  However, the person the summons is given to must be 13 or older, so in this case, service may not be proper.

I want to sue someone that lives in another state – can I do that?

This will depend on whether or not the actions you want to sue on occurred in Illinois.  As a general matter, contracts entered into in Illinois may be sued upon in Illinois.  Similarly, if the conduct or acts you want to sue on occurred in Illinois, it may be possible to get jurisdiction on an out-of-state defendant in Illinois.

What are the differences between mediation, arbitration, and a trial?

Mediation tends to be a non-binding way of resolving disputes, meaning that unless an agreement is reached between two parties, the mediation itself does not stop a lawsuit from moving forward.  Mediation is usually conducted at an early stage of litigation in an effort to get the parties to resolve the lawsuit, or at bare minimum, narrow the issues of what the lawsuit is about.  Arbitration is another alternative way of resolving lawsuits, and in some cases, may be required and may be binding on the parties.  Arbitration is best thought of as an expedited trial, where the issues and information between the parties are controlled so that litigation costs are reduced.  A trial, which may occur before a judge or jury, is where all issues and information are fully laid out to the judge and jury and they decide which party is entitled to “win” the lawsuit.  Trials are time consuming and costly, but do permit a party to have their issues fully considered by the court.  Trials are somewhat rare as 95% of all cases tend to settle prior to trial.

I won my lawsuit – can I get my attorney’s fees paid by the other side?

There are generally only two ways that attorney’s fees can be recovered during a lawsuit.  The first way is if a party is suing on a contract and the contract contains a provision which awards attorney fees to the prevailing party.  The second way to recover attorney’s fees is if they are called for by a statute or law that awards attorney’s fees to a prevailing party.

I won my lawsuit – when do I get my money?

Winning a lawsuit, which means you obtained a money judgment against a party, can sometimes  just be the beginning of getting your money.  However, per Illinois statutes, judgments accrue interest at a rate of 9% annually.   A judgment debtor may voluntarily pay the judgment quickly in order to avoid paying additional interest or to avoid the burden of supplemental proceedings. 

If the judgment debtor fails to pay the judgment amount in a timely manner, you may initiate “supplemental proceedings.”  In supplemental proceedings, you have the ability to discover the other side’s assets so you can figure out how you will recover on your judgment.  You may also place liens on real estate, bank accounts, and other assets owned by the judgment debtor. This is an entirely separate legal process.

How long does a lawsuit take to get resolved?

The length of time a lawsuit takes to get resolved often revolves around the complexity of the case itself.  A small claims lawsuit (less than $10,000) is usually resolved fairly quickly, within a few months, because there is no discovery and extremely limited motion practice which leads to a quicker trial date.  Depending on the county where the lawsuit is brought, cases that range from over $10,000 to $35,000 may be eligible for arbitration, which is also a quicker process, often anywhere from 6-12 months.  Cases over $35,000 tend to be the longest and may take up to 2 years to get to trial.  This is primarily because, as opposed to a small claim or arbitration eligible case, there is often a great deal of motion practice and discovery is not eliminated or expedited.

Are there ways to resolve a lawsuit short of a trial?

There are several ways to resolve a lawsuit short of a trial.  As noted above, some cases may resolve themselves through mediation, arbitration, or settlement between the parties based on information obtained through discovery.  Past that, cases are often resolved through motion practice, which is the process of filing various motions to dispose of a case.  Motions to dismiss a case are fairly common during the early stages of litigation.  Motions to dismiss usually attack the complaint as it is initially filed, and point out some defect in the complaint which would prevent the matter from moving forward.  A motion for summary judgment may also dispose of a case prior to trial.  A motion for summary judgment usually takes place later in the litigation, after discovery has been completed.  The basis for a motion for summary judgment is there are no facts in dispute between the parties, and because of this, one party is entitled to judgment without a trial.

What is “discovery?”

Discovery is basically information gathering.  While popular television shows often rely on a “surprise” coming out at trial, in reality, there are not many surprises at trial due to the discovery process.  Discovery permits the parties to ask questions of the other party as well as request documents that may be pertinent to the case.  Well thought out discovery requests narrow the issues for trial and provide much of the information that will be used at trial.  As both parties are aware of what discovery has been produced, and parties are generally barred from presenting information or documents during trial which have not been produced during discovery, trials tend to be based on information everyone has.  This helps prevent surprises at trial and also helps to resolve matters before trial because the parties positions tend to be strengthened or weakened based on what has been produced during discovery.