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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.