Tip 4 of Uncommon Common Sense
Tip Four – More about Time
In yesterday’s tip, I discussed managing case time. In today’s message we speak about part of why that matters so much, and why time can be one of your best advantages — if you make the debt collector’s lawyer spend a lot of it.
The Way Lawyers Value Time
I have often talked about the way lawyers value time. In debt cases there are two primary ways lawyers look at their time. First and most simplistically, they value their time according to their hourly rate. Most debt lawyers charge somewhere between $75 and $250 per hour of time, depending on their experience and “rank” in their firm and community. This is probably a lot more than you would value your time, and that gives you an ability to spend much more time on the case than they do.
The other, more realistic way lawyers look at their time is in relation to “opportunity costs,” or what they’re losing by chasing you. For more of a discussion on this topic, check out my article Understanding Opportunity Costs. I also consider this topic in detail in the Debt Defense Litigation Manual. In brief, however, consider that a typical debt lawyer might represent a few clients in cases against 100 people. If the lawyer can obtain judgments of $5,000 per case in 90 of those cases by default, those judgments total $450,000.00. If they can collect even a small percentage of those cases, a 15% attorney’s fee is going to be around, say, $75,000. For an hour or two of attorney time.
As crazy as that may seem, it is what they expect – and usually manage.
In order to take advantage of the lawyer’s need to make a lot of money for their time, you will need to spend your time making the lawyer do actual legal work. You can do this simply by defending yourself, by filing motions, and contesting the things they do. But I am not suggesting that you do things that “waste” time. Rather, the debt collectors have certain habits you can take advantage of. One of these is that they tend to be quite careless in their pleadings, and they often forget to put things into their lawsuits that are necessary to state a real claim against you. If you attack this, you force the lawyer to defend what he did and create something new.
Another, even better, example, is the way that debt collection lawyers ALWAYS object to every question you put forth in discovery. This stops most people, but for you, it will be a perfect opportunity to question the lawyer about what she means, argue with the lawyer about whether the objection is valid (they often are not, because they are “boilerplate” objections used regardless of what you asked in your discovery), and to file a motion to compel. All these things require the lawyer to spend time on a case without increasing the value of the case.
The Value of YOUR Time
If you look at the spending time, you have to consider how much money you could get by doing something else than defending yourself and comparing that to how much money you will save by beating the debt collector. Suppose you’re being sued for $5,000. How many hours would you work or be willing to work to make $5,000? Whatever your answer to that question, there’s probably plenty of reason to work hard protecting yourself. While the lawyer only gets between 15 and 25% of the value of the case, you will save ALL the value for yourself, so even if you valued your time at exactly the same as the lawyer does, it will still make sense for you to spend five times as much time as they do.
A Game of Nerves
The difference in monetary value of your time is actually a large advantage for a pro se defendant. The lawyer suing you on behalf of the debt collector is always watching the clock and needs to be “making” at least the billing rate all the time. You only need a small fraction of that to justify the actions you take, and this means that you should plan to use a lot of time to learn and implement your defense.
But to use a lot of time, you must have a lot of time, and this means that you cannot afford to spend weeks not working on the case. This is definitely a situation where “slow and steady wins the race.” Plan to spend all the time necessary on your case, and then do it.
Tomorrow we will send Tip 5.
Tip 3 of Uncommon Common Sense
Tip 3: Time is Always of the Essence
Everything in law is tied to a due date – a deadline. The rules provide very specific amounts of time for everything you must do, and missing those deadlines, while not always fatal in itself, will usually lead to dire consequences.
On the other hand, the deadlines can seem so far away as to be unlike deadlines at all, so that you are tempted to hang around doing nothing without any regard to time at all.
Time is ALWAYS Limited – You’re Either Gaining Ground or Losing it – All the Time
It is tempting to believe in litigation, as in life, that time is unlimited – that there will always be time to do the things you need to do. And the truth in law, at least, is that if you know how to do things and you are willing to take extreme action at some given points in time, it is possible to stave off disaster most of the time.
Rising to the serious occasions that come up while ignoring developing problems most of the rest of the time is very stressful, and you are likely to try to rely on someone else to do something for you on very short notice. If you are defending yourself pro se – that is, without a lawyer – you simply do not know enough about the law to be able to afford to operate “by the seat of the pants” in this way. You don’t know what it takes to do most of the tasks set before you, and you don’t know how long it will take. Therefore, you have to start long before you feel like you’re running out of time.
I often receive messages from people with a court date a day or two away, or a response to a significant motion due in a day or two. I cannot respond to many of these messages. If you had money you could hire a lawyer and trade money for time, to an extent. For most of the people reading this, however, that is simply not going to be an option. You’re trying to trade your time for money.
So what do you do? What do you do in order to stay on top of the deadlines?
First, of course, you must know how much time you are allowed by the rules to do each step. We are going to discuss that tomorrow. Today, however, I just want to emphasize something we all know all the time, and yet we ignore most of the time: time passes. If you want to win your case, you have to use the time you’ve got carefully – even when it appears that you have more than you need.
Staying On Track
The main trick of having “enough” time in litigation is knowing exactly how much time you have to do any given task. And then you must give yourself that time to do what it takes. Since you won’t be experienced in the law, you won’t be able to predict very accurately how much time things will take. Therefore you must start immediately when things come up and not stop until you’re finished.
The Time Allowed for Tasks will be Revealed in One of Two Places
There are two sources of time limits for the things that come up in your case: the Rules of Civil Procedure, and the court itself (your judge).
Time in the Rules of Civil Procedure
The Rules of Civil Procedure give you a certain amount of time for everything that happens in a case. You’ll either find this in the specific rule applying to whatever you’re doing, or in more general rules. Discovery – interrogatories, requests for documents, and requests for admissions – and Motions for Summary Judgment all have their own specific rules, and these rules will include how much time there is for response. For other motions, more generally, there’s usually a “notice” rule which will require that you give (or be given) a certain amount of time after a motion is filed before the motion can be argued. This is the time for response.
Court Scheduling Orders
Another main way time is determined is simply by the judge, usually by means of a “Scheduling Order.” This order will give the parties a certain amount of time to complete some phase of a case – to conduct discovery, for example, or to file a “dispositive” motion (a motion that could end the case). These orders DO NOT NORMALLY alter the amount of time you have for a specific task. If you’ve been given a set of interrogatories, you’ll have the amount of time allowed by the rule to answer, not the end point of the scheduling order. However, if you submit discovery to the other side without enough time for them to answer before the scheduling order ends the discovery process, they may not have to answer at all. Thus you must make sure your answers will be due before the discovery cut-off in the scheduling order.
Leave for Additional Time
Whether you have a iscovery cut-off or need more time for discovery (or need them to answer quicker), the solution is to ask the court for a special order that does what you need. Remember that you’re asking for something special, and such a motion would need to be justified.
Your Problem is Not Someone Else’s Crisis
I often receive messages from people with a court date a day or two away, or a response to a significant motion due in a day or two. I cannot respond to many of these messages. If you had money you could hire a lawyer and trade money for time, to an extent. For most of the people reading this, however, that is simply not going to be an option. Remember the saying, “your deadline is not my crisis.” Most people already have too much to do to take on some massive problem of yours on short notice. You must remember this.
So what do you do? You have to stay on track as much as possible every step of the way.
Tomorrow we’ll discuss the “other side” of time – the way you can use time pressure to weaken the debt collector’s resolve to keep suing you. Do that enough, and they’ll drop the case.
See you then.
Tip 5 of Uncommon Common Sense
Tip 5: In the Law you are Always Either Pushing or Being Pushed –
and It’s Much Better to Push than Be Pushed
We all know that it’s true in any sort of contest, that one side or the other takes “the initiative,” while the other gets pushed around. It is possible to win even if the other side has the initiative most of the time, but it is unlikely, and the game is much more fun if you are ahead throughout the play. It is really the same way with litigation.
Advantages and Disadvantages as a Defendant
If you are defendant, you start the lawsuit with both an advantage and disadvantage in the initiative. By filing suit against you, the other side took the initiative, but the rules of most jurisdictions give you an opportunity to take control. In addition, you have two huge advantages that you must use to your benefit: the debt collectors are either lazy or busy (or don’t expect you to put up a fight); and the debt collector lawyers must always justify the amount of time they spend on the case and are trying to keep it to a minimum. You, on the other hand, can and must take all the time necessary to take control.
This means you can take control of the case by giving the other side things to do. You should begin doing that immediately.
Stages of Litigation
There are a number of stages throughout the litigation: pleadings, discovery, motions, and trial. And they’re not completely distinct, of course. When the debt collector files suit and gets you served, you are forced to respond either with an Answer or a motion to dismiss. They have the initiative at that point, because you will lose the case if you do not take one of those actions. If you file a motion to dismiss, you will take the initiative of the pleading stage, since they will need to respond – but there is also the discovery stage. If you also serve discovery on them when you file your motion or Answer, you will have taken the initiative in that stage as well.
Game Planning
A good game plan will take the initiative into account. It’s a good idea to form one early in the lawsuit, and the Debt Defense System includes materials to help you do that.
If you are drafting and serving discovery, you can take all the time you want to do it, and then when you give it to the other side they have only a certain amount of time to reply. In debt collection cases, they will never give you what they are supposed to at first – it’s a fact of life. You could think of this as frustrating, as it will be in some ways. Mostly, however, consider it an opportunity for you to keep the initiative: push and keep pushing until you make them give you everything you can get. As long as they are being pushed by you in that way, they will not be pushing you back as much as they could.
The Difference between Pushing and Being Pushed
It is impossible to explain the difference between pushing and being pushed. It takes just the same amount of effort to serve discovery before the other side does as after it does – but it feels completely different. And that feeling – of being empowered rather than disempowered – makes all the difference in reality, especially for pro se defendants. But also for lawyers – it’s a drag always to be behind. Stay on top!
That is true at every stage of the game. Every time you can force the other side to do something, you are both getting what you need (or getting closer to getting it) and forcing the lawyer to spend time on the case – time that is increasingly less justified. You can do all this with appropriate pleadings and filings, and I am not suggesting you file motions that are not legally justified. There can be a cost to doing that. Rather, I am saying to exploit your natural advantages as much as possible.
You will have many opportunities to take control of things and give the other side something to do. You should take advantage of every chance you get – it will suck the will to win right out of the other side.
Tomorrow we will send Tip 6.
Tip 6 of Uncommon Common Sense
Tip 6: Know Your Friends
And Know who Isn’t a Friend
Today’s hint is a friendly reminder to know who your friends are and not to expect help from people who are actually against you or are the “referees” in the match. That is, you might be surprised how many people call up or ask the lawyer on the other side what to do, or how many hope or expect some sort of help or guidance from the judge.
Relying on the kindness of strangers – or of people with interests contrary to yours – will get you in trouble in the law. Instead, you must be able to rely on yourself and someone or some source that you trust. That’s one reason we emphasize finding and knowing the rules so much. You shoul never ask the other side “what” or “when” something is due. That is your responsibility, and it may even be unethical for the other side to give you any help.
The Lawyers
The lawyer on the other side, and the judge and his or her staff, should not tell you anything that is remotely like “legal” advice, and most people take a very broad view of what that might be in the context of an actual suit. The other lawyer should not tell you anything because you are not a client and in fact have interests contrary to the client. And the judge is not supposed to take sides in any way. Do not look to them for any sort of advice, from when something is due to what, in any way, you should say or do.
The only time the lawyer will seriously consider what you should do is in order to argue that you have not done something you needed to do. In other words, in order to beat you. This is the nature of an adversary system.
The Judge and Clerk
Likewise, the only time a judge will consider the question is when you have missed a deadline or done something wrong. Again, it’s just the nature of the beast.
Clerks will only sometimes answer basic questions, they will almost never anything that starts with “what should I do it…” Instead, you can ask questions like “how long do I have to respond to…” or “is it necessary to set a hearing for argument in order for a motion to be considered, and how do you prefer me to do that?” You can ask scheduling type questions, but their job is never to tell you what the law requires or permits, or to guide you towards any particular action, because that sort of information might be considered legal advice or taking sides.
Helpful Sources
On the other hand, there are sources that might be helpful to you. Your Legal Leg Up, of course, has a great variety of information you can use, and there are some other websites that also have some information or people in the same boat as you are. Just remember that no one has the same interest in defending you that you have. The sites that are run by people who are or have been in the same boat are not always reliable in their suggestions because the things that worked for them don’t always work for everybody. For more on this, see Sometimes a Rain Dance is Just a Dance.
Stay on top of things. You can do this.
Tip 7 of Uncommon Common Sense
Tip 7: You won’t believe the tricks the other side will play in discovery until you see them
Today’s tip is about the games lawyers play. If you’ve never seen them in action, you wouldn’t believe it, and so you should consider this an extension, sort of, to tip 2 (Always know the rules of the game you’re playing). In order to stay on top of things, you need to create and send discovery to the other side as quickly as possible. If at all possible, you must make them respond to your discovery before yours is due to them so you can see how the game is played.
I’ll give you a preview.
Games Debt Collectors Play
The rules of discovery – the rules that say how you ask for information from the other side – and how they are supposed to give it, are designed to make the opposing sides of a lawsuit cooperate. The rules set specific times for responding, and the other side is not supposed to make bogus objections or try to swamp you with everything but what you’re supposed to get. Then, if there are objections, the parties are supposed to “work things out” in a cooperative way without requiring the court to step in.
In reality, the debt collector will most likely not provide you the material you want on time, and when they do give you stuff, they will give you a set of objections that simply defy reason.
In short, they will play games with you.
Take Advantage of What they Do
You could get frustrated – it is frustrating to try to get things from the other side when they won’t follow the rules and act as if they can do anything they want to. And they do think they can, and the courts pretty much let them get away with anything.
Instead of being frustrated, though, you must see this as an opportunity for you to use time to your advantage. If you act with energy and persistence, you can use their tactic of trying to waste your time to your advantage. You are the one with more time – and you do not have to justify every action you take at a value of $200 per hour. Chase them with energy, therefore, and exploit your advantage: as you keep after them, you will be pushing them to spend time on a fight that will not bring them any money and which you will eventually probably win.
If you can make the lawyer for the debt collector spend anything like 2 hours per every $500 at stake in the lawsuit, you will simply make the suit unmanageable for them – and deeply unprofitable. When you do that, you make it likely they will give up. They’ll have to put of suing dozens of other people if you do this.
When they do Their Discovery
And when they send their questions for you, you will have a better idea how to proceed, although I do recommend that you be careful about this. The materials in the Debt Defense System could help you with this.
Tomorrow we will send Tip 8.
Filing a Motion to Amend your Answer
Hey there! This content is available to MEMBERS only! Consider registering for an account.
Don’t Talk to Debt Collectors
When should you talk to a debt collector? And why shouldn’t you talk with them otherwise?
You Should Only Talk to them If you Have a Good, and Immediate, Reason to Do so
As a recent commenter pointed out, debt collectors are often “not nice.” But whether they are nice or not, their job is to take your money away and give it to their company. That means that, personality aside, their interests are against yours, and you should never mistake politeness with being on the same side. Likewise, you shouldn’t polite discourtesy for power or anything other than what it is. In this video we review the basic rule of communications with debt collectors: it is rarely a good idea.
Hang up when you’ve said what you need to say
Once you have said what you need to say to the debt collector, if anything, you should hang up.
There are too many bad things that can happen for you to stay on without a good reason. You could make admissions that damage your case (if they get around to suing you), you could give them information they could use to take your money if they sue you and win.
Remember that what lawyers usually hate more than anything is a lack of definite information. Every time you open your mouth and speak to a debt collector, you’re giving some lawyer what he or she needs to decide to sue you. And even telling them you don’t have any money may not be helpful because that could tell them it would be easy to beat you in court.
Less is definitely more when it comes to talking with debt collectors.
Was an Affidavit Attached to Petition?
As we have often pointed out, having a counterclaim can be extremely helpful in getting a claim dismissed so that you no longer risk being sued on the debt and your credit report is no longer being harmed. If the debt collector has used an affidavit in its efforts to collect from you–especially in a lawsuit–this may have given you a great opportunity to counterclaim or sue in a different lawsuit. This video explains what that opportunity is and what to do about it. For more, get the Debt Defense System.
When you received the summons and petition to your lawsuit, was there an “affidavit” attached? That is, was there a statement of some sort, usually sworn and notarized, that said that the records of the original creditors were true and accurate?
Debt collectors often include such documents in their petitions – affidavits from their own records keepers about the records compiled and maintained by the original creditors. This misleads the recipient of the lawsuit into believing that the debt collector has a better case than it does, and it violates the Fair Debt Collection Practices Act (FDCPA) in most jurisdictions. That’s because debt collectors are not, in most jurisdictions, allowed to testify to the accuracy of records they did not have responsibility for – and records created by the original creditor could not be known to be accurate by debt collectors. They try to hide this fact by using all sorts of legalese in the affidavit. This video shows how the practice violates the FDCPA and what to do about it.
The Importance of Counterclaims
I have talked about counterclaims often throughout this site, and counterclaims are very important if you can make them for the reasons discussed below. Things have gotten a little more complicated in this area recently, however. It used to be that almost everyone who might sue you was a “debt collector” under the Fair Debt Collection Practices Act. Two big things have happened to change that.
First, many of the banks are no longer selling debts but are bringing their own lawsuits as plaintiffs. This makes sense as a way to preserve evidence – although they still often do not have what they need to win.
And second, the Supreme Court has ruled that debt buyers are not necessarily “debt collectors” under the Fair Debt Collection Practices Act. The FDCPA has historically been the easiest source of counterclaims. If you can argue that the company suing you has debt collection as its “principle business” (as opposed to making and servicing loans or selling stuff, for example), you can still sue them under the FDCPA. Likewise, there are sometimes state law claims you can make. If you were defrauded, for example, you might be able to counterclaim for fraud against a debt collector.
With those limitations in mind, our original article and video are below.
The Importance of Counterclaims
If you are being sued by a debt collector, the best defense can be a good offense. It is important to file a counterclaim if you can both because it takes the fun out of the suit for the debt collector and because it allows you to hold the debt collector in the lawsuit long enough to force it to dismiss its claims against you “with prejudice.”
In many jurisdictions, the party bringing a lawsuit retains the option to dismiss it at any time up to trial without consequence or even without the need for permission. This can mean in debt cases that the debt collector files suit, and after you have hired a lawyer and filed an answer, the debt collector is free to drop the suit, possibly for later refiling. In any event, when the suit is dismissed “without prejudice,” you are left without a convenient way to force the debt collector to stop reporting the debt to the credit bureaus, so it continues to harm your credit report.
The solution to these problems is filing a counterclaim – that holds the debt collector in the law suit until you have negotiated a resolution to the issues.
