In Football and Litigation, Avoid Self-Inflicted Wounds

February 5, 2020 | Evan H. Krinick | Commercial Litigation

Football is a game of statistics and more statistics, as any fantasy football fanatic can tell you. But if you want to predict which team will win, one statistic is particularly telling. In fact, from 2007 to 2016, the team that had the fewest turnovers in a game won 78 percent of the time. On the other side, from 2015 through 2017, teams with four or more turnovers in a game won fewer than 1 percent of their games.

Turnover – fumbles and interceptions – are largely avoidable errors. The running back needs to secure the ball; the quarterback has to pick the right receiver to throw to and make an accurate toss. As the statistics demonstrate, avoiding these self-inflicted wounds is the key to victory.

And so is it also true in commercial litigation.

One common self-inflicted wound is trying to avoid a process server. It makes no sense to do so and will often come back to haunt you. Understand that the law provides a number of ways for an individual or a corporation to be served with a legal document. For example, service on a corporation can be made on the New York Secretary of State and such service is valid irrespective if it ever reaches the corporate defendant. Similarly, for an individual, the legal papers can be given to others at your residence, with appropriate follow-up mailing. Bottom line, avoiding the process server will not stop you or your corporation from being sued but could put you in a precarious situation.

Let’s say that you hear that a process server is looking for you, and, being the clever person that you think you are, you undertake successful avoidance maneuvers. You convince yourself that you have “won” because you have not been served. Of course, alternative service processes are available and will be implemented. Some may not lead to you actually receiving the complaint, or getting it in time to timely respond. It is likely that a money judgment will be entered against you based on your failure to timely respond to the complaint. In fact, the first time you may even become aware of the lawsuit is when a judgment is served on you.

Now you consult a lawyer because you need to get rid of (“vacate”) the judgment so you can defend the lawsuit (something you could have easily done had you accepted service). But it is not so easy to undo the judgment – the law requires you to both have a reasonable excuse for not responding timely, and establish a meritorious defense to the claims.

In two recent decisions, defendants were unable to get judgments vacated.

In one appellate case from January 2020, the defendant could not establish a reasonable excuse for not responding when the complaint was properly served on the Secretary of State, even though the complaint was never received by the defendant because its registered address was not reliable. The Court specifically noted that the defendant and its attorney had actual notice of the service before it was served on the Secretary of State.

In a second appellate case from December 2019, the Court rejected the claim of a reasonable excuse for the default based on the incarceration of one defendant, when the other defendant had no such excuse. And the Court found that neither defendant offered a meritorious defense.

By avoiding service of process, a defendant invites service to occur by means less likely to get actual notice of the lawsuit. Not knowing about the lawsuit does not make it go away. Rather, a defendant that avoids service increases the likelihood of a default judgment, which is not necessarily easy to set aside.

Avoid self-inflicted wounds. Do not avoid service of process. Hire a good attorney and take your chances that you can win on the merits. And to win football games, avoid turnovers at all costs.

This article appeared in the January 31, 2020, issue of Long Island Business News. ©2020 Long Island Business News.

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