Tip 8 of Uncommon Common Sense

Tip 8: Lots of proof of one thing doesn’t make up for not enough proof of something else.

Today’s tip concerns proof.

Once you get past the risk of defaulting or losing (or winning) on some technicality, there remains the challenge of actually winning your case. If you are the defendant, you might put this as “not losing” your case by motion (for summary judgment) or at trial. To do this, you need to know about proof and evidence.

You’ll Win or Lose Based on Evidence

As you know, debt lawsuits are about proving that, for some reason, you owe the debt collector money. What they have to prove, and how much evidence they need are important questions.

Their case

In debt law, the debt collector must prove ownership of the debt or some other right to collect the debt, the amount owed, the fact that it hasn’t been paid already (as aspect of amount owed), and that it is due. In “contract” language: that there is a contract, that the contract gives the plaintiff the right to collect, that payment is due and owing, and that payment has not been made. Each one of these things must be proved separately.

Burden of Proof

The burden of proof is just what you’d think. It’s the amount of proof that must be put forward. In civil cases, this is not the “beyond a reasonable doubt” standard that you might have heard of in criminal cases, but a much lower burden. This burden is called a “preponderance,” which is just a fancy way of saying a “majority,” or, as jury instructions usually say, “more likely than not.”

We all know these cases are almost never going to come down to a delicate balancing of uncertain evidence. In 999 out of 1,000 cases, the issue will just be whether the debt collector can put on legitimate evidence to prove its case. And it normally will not have any legitimate (truly admissible) evidence of some of the issues. Remember, they have to prove each element of their case.

The Tip

And thus we come to our tip: Lots of proof of one thing doesn’t make up for not enough proof of something else. The debt collector may have a lot of proof that it owns the debt. It may have a lot of proof that you owe somebody the debt. Although to tell the truth it often will not have proof of either of these things. They will likely have a few “statements” that you were supposedly sent (although they won’t have evidence that they actually were sent), an affidavit claiming that you owe a certain amount, and they’ll try to bluff it through from there.

Remember at every stage of the actual proof that the debt collector must prove each part of its case, and a lot of evidence of one part does not in any way lesson the burden of proving every other part. When you are attacking their case, therefore, you attack every part of it. Challenge every piece of evidence and show that the evidence isn’t admissible. Learn the important rules of evidence and prepare your objections before trial. This is not something you can “wing.” To give yourself a chance to win, you must prepare your objections in advance.

 

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