Tag Archives: motions

Tricky Rule Can Screw Pro Se Defendants

tricky rule can screw pro se defendants
tricky rule can screw pro se defendants

Not All Rules of Civil Procedure Are Logical or Predictable

Tricky rules can prevent you from defending yourself.

Unfortunately, there are a lot of rules of civil procedure which present lurking danger to the pro se defendant or even a lawyer not used to litigating. One of the worst of these tricky rules, however, is one requiring objection to exhibits in advance of trial.

Tricky Rule Screws Pro Se Debt Defendants

The way this “presents” is likely to be you receiving a set of exhibits – or some sort of notice referring to exhibits – from the other side. It may even be so innocent as a statement that “Plaintiff will use the exhibits attached to the petition at trial.” If any of these things happen, or if there are a lot of exhibits in the record in any way, you should beware.

Some jurisdictions allow this list of exhibits as a pretrial submission where, if you do not object to them, they will be accepted into evidence without objection. In other words, this tricky rule will prevent you from making an objection in trial – the very time you would think you needed to object. In a debt case, this will be almost certainly fatal to your defense.

You Don’t Get Much Time!

Debt cases hinge on the ability – or not – of a debt collector to present record evidence of the alleged debt. Since debt collectors did not create those records and in most cases have no knowledge of how they arose or came into existence, one of the debt defendant’s strongest challenges is to attack the use of those records as evidence. You attack their “admissibility.” If you successfully do that, you will likely win the trial. If you fail, the debt collector almost certainly will.

Automatic Admissibility a Trap for the Inexperienced

A tricky rule which allows automatic admissibility is a dangerous poison pill for debt defendants, and you much know whether such a rule exists in your court. As we say, receiving a list of exhibits is a hint, but you should search your court’s “Local Rules” if it has them, and your state’s Rules of Civil Procedure, to find out if you must worry about this rule. If you have it, it’s easy enough to make your objections, but you will have to object prior to trial and on the schedule provided by the rule.

Protect Your Rights

Even if you are reading this article late in the game, shortly before trial, and you are not already a member, you should consider doing so. We have materials helpful to last minute defense and trial preparation even if you are facing this rule.

If it’s a little earlier in the lawsuit, or if no suit has yet been filed, you have many other options. Membership can present you many benefits and help you win your case. Or you could check out some of our e-courses.

 

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Discovery in Debt Defense – Defending against Debt Collectors

Discovery in Debt Defense

The discovery process in debt law suits may be key to having a chance to win.

If you are being sued by a debt collector, you probably wish the case would “just go away.” It may be tempting to do nothing BUT hope that it will. But if you want to give yourself a real chance to make that happen, you will need to take action. After filing your Answer to their suit, what next?

The process of formally finding out what they’ve got.

What is Discovery?

Discovery is the process by which you ask what the debt collector has that might prove its case. And you ask for things that might help you defend yours.

Remember that for them to win, they must use evidence that obeys the rules of evidence (if you make them). Since they have to prove their case, you can win if you prevent them from doing this. And you can win in a quicker, easier way, if you can show ahead of time that they cannot prove their case. (You do that by filing a motion for Summary Judgment.)

Therefore, the key is to find out what they have. Discovery is the way you do that.

Discovery Discourages the Debt Collector

Debt collectors hate to spend money on your case. This is not because they think they will lose the case – at least not at first. It’s because they expect it to be hard to collect anything from you. If you pursue your right to discovery, you will force them to spend time on your case. And time is money. There will come a point when suing you becomes unprofitable for them. When that happens, there’s a pretty good chance they’ll drop the case. Therefore, working on this increases the chances they will drop the suit.

How to Conduct Discovery in Debt Defense

You conduct discovery in debt defense cases  the same way you would in any case. That is, there are specific rule – the Rules of Civil Procedure – that control what you can do. Therefore, you must FIND these rules for your state.

Our materials, of course, help you figure out the things you should ask for in order to win your case.