The Answer and Some Early Defense of Debt Litigation
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Tag Archive for: discovery
Videos Strike First and Our Case Their Case
Two basic concepts relating to discovery: our need as pro se defendants to serve our discovery first and quickly (not necessarily the same things, as debt plaintiffs often don’t serve discovery at all). And to understand that our case requires that we prove certain things, while we need to know other things in order to defend against their case. Again, the idea may be obvious, but you must separate our case and their case analytically in order to understand exactly what you need for the case.
Strike First and Fast
Two Principles of Conducting Discovery When You’re Sued for Debt
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Your Case – Their Case
What’s Important to Each Side When You’re Sued for Debt
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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 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.
Discovery key to victory in debt litigation
We talk a lot about how many debt defendants default on their lawsuits – or show up just to give up via settlement. It is also true that many debt defendants either feel so righteous or so helpless, or so confident for one reason or another, that they defend themselves without adequately preparing for the case. This is a recipe for disaster for these defendants – and hurts other debt defendants, too. That’s because the judges get used to substandard cases from debt defendants and stop paying attention.
And THAT’S on top of the fact that most judges identify with the wealthy – and are wealthy – or at least identify with the lawyers. The guy representing the debt collector may not have golfed with the judge, but chances are good that the judge has golfed with a friend of his.
It’s a club, and you’re not in it.
For you to have a chance, you have to do something to stand out and apart from all the other people filing through the courtroom every day. You have to take some action that will allow the judge to get to know you a little bit – just enough to pay attention to you and the law. And of course you must know the right law so that you can explain that other hurtle – the judge’s ignorance.
I’m Not Saying, I’m Just saying…
A lot of judges are quite smart, and some… not so much. But you must realize that judges handle potentially thousands of cases per year, and in the case of judges dealing with debt cases, that number could be in the tens or even hundreds of thousands, of cases. They’re busy, and they barely have time to learn the fine points of the law if they don’t already know them. And most of debt law is both controlled by the fine points of laws and rules, and unknown to most lawyers. There is a very good chance, in other words, that your judge DOES NOT KNOW the law you’re depending on. And he or she barely cares. How do you break through?
Discovery – the Key to Your Best Chance
Ironically, the debt collectors will always object to all or almost all of your discovery, and this will give you an excellent reason to learn much more about the law in a useful context. Even more importantly, it will give you a reason to practice talking to the court and an opportunity to make yourself known to the judge. And it gives you the excuse to start educating the judge on what HE needs to know in order to be fair to you.
You need to discovery to have a good chance to win. And if you do it, you also dramatically increase the chances that the debt collector will walk away from your case long before trial.
Conducting Discovery – Part 3
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Conducting Discovery – part 1
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Conducting Discovery – part 2
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