Getting sued is irritating and frustrating, to say the least. You literally have, in most cases, 21 days from the time you are served to make many of the most critical decisions about the case. Is there any merit? Do you settle it? If needed, who do you hire for defense counsel? Do you have to notify insurance?
While getting sued is the first irritation, it can be even more frustrating when it feels like the only thing moving along in a case is the lawyer’s billable hour count. So what can you do to try and speed things along? What behavioral aspects can be gathered to help you? The good news is, there are plenty. Below are five things to do when that lawsuit comes through the door.
1. Know who is suing you
The more you know about the plaintiff, the better. Plaintiffs are human too and it's amazing what a little knowledge and kindness can do. Often times, I have found plaintiffs not knowing a case even existed for them; other times, they have just wanted a tradeline removed on a legitimate dispute.
You can also make critical findings through a quick social media search that may be extremely valuable, sometimes dropping the case’s value significantly or all together. There may be vacation pictures when they should be at mediation or hearing, or they list a cell phone as a business number and invite anyone to call.
2. Do your research on the claim and the plaintiff’s lawyer
It’s no secret that most of the FDCPA, FCRA, and TCPA lawsuits come from the same few plaintiffs’ lawyers, sometimes even after courts have thoroughly rejected their arguments. In this aspect, knowledge is power. Knowing how a particular claim or specific attorney faired in a specific jurisdiction or before a specific judge—which can all be gathered quickly in a few clicks on the iA Case Law Tracker—can help you make an informed decision about whether to defend or settle a case.
If, for example, you knew that Judge Azrack in the Eastern District of New York recently filed four copy/pasted decisions on the same day dismissing a specific claim in four nearly identical FDCPA lawsuits—three of which were filed by the same plaintiff’s lawyer—you’d know that a similar claim before Judge Azrack or with that particular plaintiff's counsel would likely go in your favor. This type of analysis was available in this week’s Case Law Tracker newsletter. This tool is invaluable.
3. Take it to trial before you send it to outside counsel
Do as much internal review as possible. Gather the notes, call recordings, letters, speak with staff, and so forth. Find out what truly took place. This will save time and money in the short and long run. When cases are sent out to outside counsel without a deep-dive review, things get missed. Not intentionally, but others may presume that you found no issues or concerns and that the case is defensible. They may not know or see that the issue derived from a client error, which may be a backbone for client indemnification. I see this happen quite frequently. Always, always request documentation from the clients! Always find the "nuggets." If you dig deep enough, you will usually find something.
4. Give early mediation a shot
I like to do early mediations as it gives me far more insight than any written discovery ever has. You get to see the plaintiff and his lawyer in person, allowing you to observe everyone’s interactions in one setting.
Here is a small tip: I always review the plaintiff's birth date in their account notes. I always try to schedule mediations (if, of course, it is manageable to do so) around their birthdays. People are happier around their birthdays and most plaintiffs lawyers don't keep track of that information. It has been helpful in getting resolutions when the consumer sees that we have taken the time to get to know information about them.
5. If needed, hire the right counsel
There are a few important things to consider when choosing outside counsel. Know the relationship between the defense counsel and plaintiff's counsel. Do they hate each other? Do they have a ton of cases together? Do they play golf together? I have experienced all of these scenarios. If they hate each other, oftentimes your case becomes a pawn in a larger battle, resulting in unproductive and costly legal moves that may not have been initiated if the hostility didn't exist between the two sides. If they have several cases together, it can be a hit and miss. If they are settling several cases all the time you may get "the typical settlement" amount as the rest. If you have a horrible case, sometimes you would prefer the going rate in order to avoid being noticed. If your case is a great one and should be dismissed, you may get stuck with the plaintiff’s lawyer trying to push for the "going rate" demand anyway.
Hire a litigator if you are going to fight a case. Ask the attorney prior to hiring, how many times they have gone to trial? How many cases have they tried against this particular plaintiff’s attorney? It's surprising how many attorneys haven't actually tried cases against each other even though we have all seen their names around for years. Another critical aspect is to look at the personalities, both of the plaintiff’s attorney and the defense counsel you are thinking of retaining. I always think, "Hmm, now if these two were in a trial against each other, who would the jury like/adapt/respond to better?" I may lose on a motion but have hands-down won with juries that appealed to our delivery and presentation of the case.
Bringing it all together
Strong facts and supporting case law are clearly important but the behavioral aspects of the individuals involved (plaintiff, attorneys, and judge) can be very instrumental in the outcome of the case and how long it will take to be resolved. We've all seen egos and opinions get in the way of resolutions. The players matter...people matter... relationships matter...especially in the inevitable game of litigation.
About the Author
SHANNON SMITH has managed large organizations' risk and litigation departments for several years. She has implemented highly successful programs and strategies that have resulted in dramatically reducing litigation budgets by 25-40%. She has successfully negotiated or obtained dismissals in hundreds of cases filed nationally against the companies and creditor clients by using her unique approaches to litigation as a non-lawyer. She can be reached at firstname.lastname@example.org.