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.
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.