Without pressure, without panic, carefully read the lawsuit, gather all evidence supporting your version, and remember that the threatening language and venomous wording in the lawsuit are not facts or evidence, but rather a means of pressurizing you. Adv. Moshe Kahn speaks about the statement of claim, statement of defense, the proper stages in conducting the lawsuit that can mitigate damages, and the counterclaim that could possible turn the tables.
Receipt of a lawsuit is a traumatic experience, especially for those who are not used to it. For some people, this could lead to great stress. Others talk about lack of sleep and severe emotional reactions, especially after reading the lawsuit, which is usually worded in a venomous and threatening manner. Indeed, in some cases, the purpose of filing the lawsuit is to create pressure.
It should be noted that everything written in the lawsuit reflects only the opinion of the plaintiff and his attorney and it is not proof or evidence of the correctness of matters. Therefore, it is advisable to take a deep breath, relax and start to take rational steps for your defense. Adv. Moshe Kahn, a litigation attorney from Tel Aviv who frequently appears before courts in Israel, describes the correct path that should be followed in order to eventually reach a safe haven, if you have found yourself being sued in a lawsuit in Israel.
“In such situations, there is great importance to the first actions that are taken”, emphasizes Adv. Kahn, “and yet, there are certain things that one should refrain from doing under any circumstances. Either way, one thing must not be done - do not ignore the lawsuit, and even if you think there is no substance to the lawsuit, do not ignore it and do not tear it up and throw it in the trash. A lack of response will enable the plaintiff to receive a judgment in his favor. In addition, do not talk to the other party prior to consulting with an attorney on your behalf. Remember, there is a good chance that your conversations are being recorded”.
When and how did you receive the lawsuit – you need to write down the date on which the lawsuit was delivered to you – known as “service” – and the manner in which you received it. This detail may have great importance later on. If you are a “foreign defendant”, you need to check whether an Israeli court in fact has jurisdiction to hear the case against you.
Read the lawsuit thoroughly – pay attention to every detail. Read the section headings, the dates that are mentioned, the names and the appendices. Usually they include the plaintiff’s evidence. Thus you will better understand the nature of the plaintiff’s claims, whether they are true, what they are based on and what exactly you are being sued for.
Find out the time frame for filing a statement of defense – once you understand what legal process you are facing, you will know how much time you have to file a statement of defense according to the civil procedure rules in Israel. In an ordinary action, you will have 30 days. In an accelerated law procedure, you have 45 days. In a summary law procedure, you are to file for leave to defend within 30 days. In special procedures, for example a temporary injunction, a very prompt response is required. Remember that according to the civil procedure rules in Israel, failure to file a statement of defense timely may lead to a default judgment in favor of the plaintiff.
Deal with the plaintiff’s claims – after reading the lawsuit, write down the pattern of events as you perceive it, in an organized and concise manner, making reference to each and every claim raised by the plaintiff, in order. If you have evidence, indicate this in your notes.
Examine the possibility of filing a counterclaim - you should now check whether the plaintiff owes you any money or whether the plaintiff has caused you any damage. This will enable you to examine the possibility of filing a counterclaim against the plaintiff, since “the best defense is a good offense”. The filing of a counterclaim having a solid legal basis, shortly after the lawsuit is filed, may change the balance of powers in the legal battle.
Be discreet with the plaintiff – from the moment you receive the lawsuit, and even if you knew of the intention to sue you prior thereto, refrain from speaking to the plaintiff, his attorney or any of the persons mentioned in the lawsuit or related to the plaintiff. Conversations may be recorded or documented and may be used against you later on. If you have no choice, ensure that the conversation is as short and to the point as possible.
Gather evidence and witnesses – obtain any document or thing that could be used as evidence in support of your version. If the lawsuit concerns a monetary debt, find all receipts of payment, invoices and documents proving that you have indeed paid the debt.
In addition, make a list of evidence that is not accessible to you. It may be possible to obtain them later during the discovery of documents process. The purpose of collecting evidence is twofold – to support your version and to rebut the plaintiff’s version. Make a list of potential witnesses. If you suspect that you will not be able to obtain the testimony of any of them, for any reason, or if there is a concern that they will change their version, try to take testimony from such person already at this stage.
Consult with an Israeli attorney - at a very early stage, after understanding the nature of the claims against you and prior to taking any action that could harm you, you should contact an Israeli attorney specializing in the field in which you are being sued and provide him with the documents of the lawsuit, your written response regarding each clause of the lawsuit, and the evidence which you have collected. Now you can determine, together with your Israeli attorney, the manner of conducting your defense.
According to Israeli law, there is no obligation to appear in court in a civil suit with an attorney, however, the larger the scope of the lawsuit against you, and especially when the opposing party is represented by an attorney, it is recommended that you also seek the assistance of a skilled Israeli lawyer who will act on your behalf to mitigate the damage of the lawsuit and sometimes even make it disappear altogether. An attorney in Israel can also advise you as to the chances of filing a counterclaim against the plaintiff.
The sooner you contact an attorney, the more time he will have to prepare. Be involved in the process and ask to receive updates on any legal developments. Tell him of documents in the other party’s possession and that you wish to review them. Effective use of the discovery of documents process can assist you.
If the Israeli attorney believes that the Israeli court does not have jurisdiction to hear the lawsuit against you, he will take the legal steps required.
Be involved in the case – after contacting and obtaining representation by an Israeli attorney, remain involved in the case and do not leave absolute responsibility of conducting the case to the attorney. Be involved in the writing and editing of the statement of defense by your attorney and request to receive updated reports of everything that takes place during the legal process, including with respect to interim decisions.
Consider compromise offers – in a civil procedure, you should not completely rule out the acceptance of a compromise offer. Usually, offers made to you at the beginning of the procedure will be biased in favor of the offeror and will not be especially “tempting”. Only towards the evidence stage and after filing the affidavits of evidence in chief, the legal situation of each of the parties will become clear and the compromise offers become realistic. You should examine with your attorney your chances of success and risks involved and consider with him whether to offer or accept a compromise offer.
Adv. Moshe Kahn specializes in commercial law, corporate law and litigation. He is licensed to practice law both in Israel and the U.S. and is the founder of a law firm in Tel Aviv.
