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Time is Critical in Debt Defense Part 2

Time! Time!! – It’s All about Time

This is Part 2 of this Article. For Part 1, click here: Time! Time!! It’s All about Time.

Perceived Lack of Resources

Because of the nature of the beast, you are also going to be seen as having fewer resources. Does that mean anybody gives you a break? Wake up – this is life in the jungle where predators eat the weak. You must learn how to battle the perception of weakness. Again, this involves the careful use of time. You are perceived as poor, distracted, and ignorant by the high and mighty debt lawyers. You must overcome that perception by staying on top of things from the very beginning. You’ll be tested in discovery because motions to compel are time-consuming and boring. But you will be tested in many ways. Stay on top of it!

Notice, too, that perception of lack of resources is different than any actual lack. Their perceiving that you lack resources will cause them to try to take advantage of you (debt collectors) or blow you off so they can get to “more important” things (judges and their office staff). Staying on top of things can reduce the number of tricks they try and the impact of the ones they do try.

Actual or Perceived Lack of Experience

I lump these together because almost all pro se parties are unfamiliar with the law – and expected to be so by the lawyers on the other side and the court. Expect that to mean anybody will help you? Again, get real. It means you will be patronized by the lawyer and ignored (to some extent) by the judge. You must counter this lack of experience through preparation. You should take the time to watch a trial and other court proceedings, and you must also take the time to think through your points and locate authority for the positions you take. You can do all this, but it takes time.

Some Resources

As I pointed out above, the three “faces” of the issue you deal with are time, organization, and discipline. I can’t help you with discipline, but all my materials, and specially the membership, are designed to save you time. The Litigation Manual was created to make you familiar with the process in general, and the motions packs should help you with time at certain critical points. And of course my website in general is a resource.

Two New Products

Two products designed to give further help are the trial binder and the Guide to Legal Research and Analysis. The Trial Binder helps you put the materials you need into the most useful order, while the Guide to Legal Research and Analysis helps you get started on the ways you think about and prepare for your case.

Using Time – critical in debt law pro se

Deadlines in the Law Are Always Critical

When you are involved in litigation – either willingly or unwillingly, either as the plaintiff who initiated the suit, or as a defendant dragged into court – time is always critical. You will have deadlines for every single thing that you do. These deadlines are either:

  • obvious, explicit deadlines set forth and given to you by a court “Scheduling Order;”
  • less obvious but just as explicit deadlines established by either your state’s Rules of Civil Procedure or your own court’s “Local Rules;” or
  • not obvious or explicit – but implied by the fact that there is a date set for trial.

Deadlines: Explicit or Implicit

Courts will often create what is called a “scheduling order” which puts down the times by which times must be completed. You have to count back the days to figure out when you need to get started. For example, if the court sets April 30 as the date by which discovery must be completed, if you’re in Missouri you figure everything out in this way. Parties get 30 days to respond to discovery – they will object to everything, and you must send them a “good-faith” letter before filing a motion to compel. They get 5 business days to respond to a motion to compel, and it will take you 10 days to write one. Therefore, you must serve your last discovery 30 + 5 +  10 + a week for the good-faith letter + any time added by the Mailbox Rule + the amount of time the court will give them to give you the discovery. That means you need to file your last discovery at least 3 months before the end of the discovery period. In that example, you had one explicit courrt-imposed deadline, and several other “implied” deadlines in order to get it done.

One of Your First Steps

Your very first step as a litigant must be to find out what rules control your case – and most specially what rules control the deadlines in your case. When it comes to missing a deadline, excuses are for losers. If you’ve missed a deadline, you must make your excuse and hope for the best! But never forget that there is a price to pay. You lose ground, either legally or in the eyes of the court and the other side, for every deadline you miss. You also add extreme stress to your life and risk to your case if you are always near and sometimes miss deadlines. I cannot make that any plainer, can I?

And another thing to keep in mind: time may be the cross on which your case could die, but it has two other aspects: organization and discipline. Find out what you need to do and when you need to do it. Then set up things so that you can do what you’re supposed to do (organization) and then, actually do it (discipline).

Having read this, you have no excuse for coming to me (or anybody) and saying that you didn’t know when something was due.

Why Time is So Important

Why is time so critically important to everybody, and most particularly to pro se parties? Let’s answer the second question – the most important one – first: why it matters above all to you.

Pro se parties in general, and specially in debt cases, must understand the way time works in their cases more than anyone else for three reasons:

  • your actual lack of resources;
  • your perceived lack of resources;
  • and your actual and perceived lack of experience.

The added “kicker” in debt cases is that you are maving into a headwind caused by the fact that so few people (represented by lawyers or not) defend debt cases with intelligence. Everybody expects you to “roll over” or, as the Beatles song goes, “get back to where you once belonged”

Actual Lack of Resources

Most debt defendants or people involved in debt-related litigation (as, for example, filing a claim for violation of the FDCPA where you are the plaintiff) simply do not have very much money. This type of law, in general, was designed for people without much money, and that’s a problem that many, but not all, pro se parties face. An actual lack of resources means that you have to scramble to get the things you need, from law books to typing paper, from trips to the library to trips to the court room. And daycare – to mention just a few resources that may not be readily available to you. To offset these actual resources you must schedule time enough to overcome them.

Click here for Part 2 of this article, Time! Time!!

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.