Sometimes, it can take a while to force yourself to do something about it when you face something unpleasant in life — like a lawsuit.  The problem at that point, becomes how to deal with a trial date that is coming up fast.

In This Episode We Discuss:

• What three valuable things can you still do even if trial is getting close
• How you can sometimes get an attorney to represent you, who previously turned you down
• How you can limit what the debt collector is allowed to use at trial
• How to find out exactly what evidence the debt collector has

Show Notes

California Code of Civil Procedure Section 96

Transcript

Welcome to the California Collection Defense Podcast.  My name is Ian Chowdhury, I am a California Consumer attorney, and your host for this program.

Today, I’m going to address a question that I get asked a lot, when people call me.  So, even though I know that you personally would never find yourself in this situation, bear with me, because apparently it happens to lots of people.

So, somebody will schedule a phone call with me (which by the way you can do from my website at California Collection Defense Dot Com), and they end up saying this; “Ian, I’ve been sued.”  Okay, no surprise there, that’s why your calling me. “well, actually I got sued about a year ago…” Hmm.  Okay.  “…and the trial is next month and I have not done a single thing since I filed the answer.”  Ahh.  Now I see the problem.

Now, I’m sure you would never find your self in this position, because you would be more proactive that that, right?  But let’s just say things got away from you a little bit, and here you are.  For the last year you have ignored everything about the case, after filing the answer.  What do you do now?

An Attorney Who Turned You Down at the Beginning of the Case, Can Sometimes Take Your Case on the Eve of Trial

Well, it’s not the ideal situation, but you might still be able to do something about it.  Certainly you can make the best of what you have to work with.

You might still be able to hire an attorney — even if you tried and failed at trying to find an attorney to represent you when you were first sued, the circumstances might have changed.

I know that speaking for myself, sometimes people call me seeking attorney representation at the front end of the case and sometimes I can take the case and sometimes I can’t take the case because I’m too busy right at that moment, my case load is too heavy, and I can’t take on an entire case, with everything that entails and it might last for the next year.

But then someone else might call me literally a week before the trial, and I sometimes — not always but sometimes — I am able to take that case which is one week away, because when trial is only a week away, it is only going to be on my agenda for a limited time, so even though I might turn down the case where the whole case is yet to be fought, sometimes I might take the case that is practically on the eve of trial.

I do NOT recommend this as an intentional strategy when first going into the case, because it means that you might have missed all kinds of opportunities and important things that could have been addressed if you had an attorney earlier.  But, if that is where you are, then that’s where you are, and so all I’m saying is that you might be able to line up an attorney for an impending trial and that would be better than going it alone.

So that’s the first point, is that even if you have previously tried and failed to get an attorney when you first got into the case, you should try again when trial is right around the corner.

Serve a Request for Witnesses and Evidence on the Debt Collector to Limit What Can Be Used Against You at Trial

The second thing you should do, is to mail to the other side a document called a Request for Statement of Witnesses and Evidence. You will want to use this.

The Request for Statement of Witnesses and Evidence is described at the California Code of Civil Procedure at § 96. Mailing this type of request, it is a procedure that is only available in limited jurisdiction cases, that is, cases where less than $25K is at issue, but that covers about 95% of collection cases.

In a nutshell, the Request for Statement of Witnesses and Evidence allows you to ask the other side to reveal the evidence and witnesses they plan to use at trial.

This gives you some idea what you ll be facing at trial, you’ll get to see the evidence. That can take the edge of your nerves, because you can prepare. Usually, rather than simply describing the documents, the debt collector will actually attach the documents, giving you a nice trial-ready package and saving you some copy costs to boot.

In response to one of these requests, the debt collector also has to tell you the identity of any witnesses they are bringing. They should name the witness. This will allow you to Google the person, look for material to use against them in cross-examination or to learn what to expect.

Now this is important — if the debt collector s response to the request fails to name a witness, or if they bring a witness to trial other than the person they named, you can object and argue to the judge that the witness should not be allowed to testify because he or she was not identified in the debt collector s response to your request. The judge has the authority to grant or deny the request to exclude the witness, so do some brain storming before hand about why it would be unfair to you, to allow that witness.

For example, by failing to name the witness, the debt collector deprived you of the ability prepare a cross-examination specifically tailored to that person. The debt collector might argue that parties do not have to be identified in response.  However,  witness who shows up at court is not a party, they are the employee of a party, and there is a difference between the party itself and somebody who is an employee, so in fact they do have to specifically identify any witness in response to your request. There is no witness who is named Midland Funding or whatever company.

There is a small window of opportunity, a timeframe during which you can validly serve one of these requests.  At the earliest 45 days before trial, and no later than 30 days before trial. So you need to mark it on your calendar, its just a 15-day window.

Now this episode is not about the little details like how to properly serve documents, or how to calculate the proper time frame,  but visit the website, California Collection Defense dot com, and there will be some resources on the resource page.

Good luck.  Be sure to check the website, California Collection Defense dot com for the show notes and all the other useful stuff I have there for people facing debt collection lawsuits.

Oh, and by the way, one other thing to think about, even if you cannot get an attorney to represent you for the trial, you could try to book a paid consultation, just say “look I understand you are not taking my case, but I’ll pay you for your time on the phone to just help me figure out what to do,” and sometimes you can get that.

For example, with my own practice, I have a scheduling app on my website, and people can book a 1/2 hour telephone consultation for a fairly low rate, and that is a different thing from the free consultation to see if you can hire me.

So, that’s three things you can do, even if trial is right around the corner.  Make another effort to hire an attorney, even if they turned you down before, send out a request for witnesses and evidence, and third, even if you don’t find an attorney to take your case, get a paid telephone consultation and ask for as much detail as you can about how to proceed at trial.

That is all for right now.  This is Ian Chowdhury.  Thanks for listening.

The post CCH0004 Three Things You Can Do To Prepare When the Trial is Around the Corner appeared first on Consumer Law Coach.