P9 – Overview of a Lawsuit Process Part 1
0:01
OK, we’re going to talk about an overview.
0:04
I’m going to discuss how a civil proceeding takes place.
0:09
So if someone sues you or you want to see someone else, I’m going to describe generally how that plays out, how the rules function, and then a general strategy that I like to recommend.
0:20
So a lot of cases are resolved in what’s called summary judgement.
0:24
So, when you sue somebody, there has to be a reason to assume.
0:27
And so there’s list of reasons to sue somebody like breach of contract, or, you know, civil claims like Default on a loan, and there’s all kinds of ways to state acclaim for debt.
0:40
So, you’ll, you’ll see that, I mean, if you go look in the Your Clerk of Courts darkening sheet, it’s a list of all the cases that are filed. You’ll see lots of cases filed by banks and you can pull them their public record. You can go look at them and see what’s happening. And lots of times, they’re defaulted.
0:54
But the way it works is let’s say it’s a bank or … is a bank as an example. So let’s say Citibank sues you for not paying a credit card bill.
1:03
It has to say that we’re lent money by the creditor by Citibank and that you fail to pay under the terms of the contract, and then it has to kind of alleged the contract. There’s different ways around it. A lot of times, the banks don’t have the actual contract.
1:21
So what they’ll do is, they’ll say that, there’s a stated account, and the burden of proof does not require the contract to be proven, so there’s a different way to what’s called, plead the case.
1:32
So, if I want to sue for a debt, I have several ways of presenting that case to the court. I can say it’s a stated account. I can say, it’s an open account. I can say, it’s a bridge contract. I can say it’s a default on a loan. At each of those types of cases. Have a different set of facts I have to say to the court and a different burden of proof.
1:50
Well, if I’m an attorney and I want to get more referrals from the bank, I want to have the lowest burden of proof that there is.
1:58
And probably in the eighties or the nineties, the courts around the country came up with a a cause of action. That’s a really watered down version of suing someone under breach of contract and it’s called a stated account.
2:10
But the Achilles heel of a stated account is that there has to be an underlying debt so they still have the same problem. But if you don’t understand the pleading requirements, you’re gonna miss it and lots of times attorneys don’t even try to help you anyways. Even if you have an attorney, there, even care about that. They don’t want to argue the case. What they’ll do is try to get you into a payment plan. Just act as if you owe the money, right? Even if it’s Citibank, I don’t like to pay them. If it’s grandma, I borrowed money from my brother, I’m going to pay them, I’m never going to make it to court. So I just that’s how I, that’s how I recommend doing this.
2:39
But anyways, the background information that I’m going to, I’ll share with you right now. You can find this in the Federal Rules of Civil Procedure.
2:52
The Federal Rules of Civil Procedure.
2:54
Now, there is a set of rules for each state, and every county has its own local rules. So there’s lots of rules.
3:02
They usually don’t conflict with each other, but I’m going to I’m going to tell you how they generally work together. So a complaint comes in.
3:10
And the best response usually is asking the court to dismiss the complaint because it doesn’t say the right things. And the technical language is.
3:21
You ask for dismissal because the complaint fails to state a cause of action or a claim on which relief can be granted.
3:29
And all that means is, the court does not have jurisdiction and why wouldn’t have jurisdiction is because let’s say that the, the plaintiff, let’s say Citibank Sujit first stated account and failed to allege the account.
3:48
Maybe they left out an important fact.
3:50
OK, so, you would file a motion to dismiss and say, Yeah, that might be true, because a motion to dismiss does admit, what are called all well, pleated facts, OK, but that’s fine. You can admit everything, it’ll change later on if the motion is denied.
4:07
So, you would just say that the plaintiff didn’t allege everything properly and therefore the court can’t take jurisdiction until the pleadings are amended and that’s all it’s going to happen.
4:16
The planes will be amended.
4:17
now, let’s say you didn’t do that, let’s say you just answered the complaint and the pleadings were actually insufficient.
4:23
The case would proceed forward and it will cost money and time for them. At least, if you don’t have an attorney, it costs more money for them.
4:29
And then, the same issue would come up eventually, even if the plaintiff won the case.
4:34
If the pleading was still insufficient, the court made it on its own observation dismiss the case or you could come back and dismissed the case.
4:44
Even if the plaintiff won a year later or two years later and you can say, Hey, it just now occurred to me.
4:50
The pleading was insufficient and therefore the court never had jurisdiction and jurisdiction has never waived so you could actually reverse the whole case That’s how important it is to have the pleading done correctly. So, one of the things I like to do in a case is, um, is I look at the, all the allegations and all the exhibits. And I and I really pick them apart. So here’s an example.
5:09
Like, you can see one of my privacy fights you know, but um, I like to say that a personal say, the defendant had a contract and a copy of it as attached.
5:20
I love when they say that because I file a motion to dismiss, and I say the allegation of the contract does not refer to the contract that is alleged.
5:34
And even though it does, the only person who can really testify to that is the Defendant.
5:39
So, they have a really bad problem there, that they cannot, They can’t get past that argument.
5:45
And a lot of times, it’s so, so effective that the judge has to agree and he can dismiss the case Now. It doesn’t mean that they can’t amend the pleading and come back. So, it’s kinda fun, though, to beat them once or twice and make them amend. the men. The pleading Now. sometimes you can win permanently Evelyn, plenty of those cases, too.
6:03
So there are pleading requirements to get into court. You have to say the right things.
6:09
There’s a responsive pleading. You can answer the complaint, which I recommend trying not to I like trying to just get it dismissed from the beginning.
6:17
So if a motion to dismiss comes in, you have like if you want to file a motion to dismiss, that’s I’m talking about. So let’s say you’re the defendant.
6:25
So they see you you file a motion to dismiss You make up a clever argument or whatever, and they should usually respond.
6:32
Now, if you’re suing someone, and that person files a motion to dismiss, you should probably respond to that.
6:38
You don’t have to, but it’s better to respond.
6:41
Point for point, that’s the most effective say, then you have all that issue, right?
6:44
So, now, let’s say the judge looks at it Now, sometimes the judges look at the case and they say, well, it looks like I should grant the motion.
6:51
But I’m gonna let this thing play out.
6:53
The judge perfectly has discretion to do that, so he could deny the motion to dismiss and order the other side whose motion was denied to file a written answer.
7:04
Now, the rules say, if a motion to Dismisses, denied the, the moving party, the, the defendant has so many days in which to file a written answer, either admitting or denying each and every allegation.
7:19
Usually, that’s 20 days. Sometimes the judge will adjust it.
7:22
Sometimes the judge will ask you how much time you want, within reason, they’ll let you.
7:27
So you do the answer.
7:28
Now, If you’re the defendant, and you found the answer in this situation, you’ve done your motion to dismiss it was denied. You fail your answer.
7:36
With the answer, here’s what I recommend, that you send a list of questions, others types of questions you send.
7:42
The reason why is you want to control when discovery is completed.
7:47
So, if you begin discovery before the other side, you have a bit of an advantage in my opinion, because and I’ll explain why, you’ll have the first chance to ask legitimately for a summary judgement. That means a judgement without a trial.
8:01
So, you want to control discovery?
8:03
So, the way we start discovery is we we pick apart the pleading the allegations, the affidavits they included with the complaint exhibits and it just takes a little skill. I’m not going to get into that right now.
8:14
But basically, you have questions they’re called interrogatories say that 10 times fast.
8:21
Interrogatories you have questions that are called requests for production.
8:28
That just means you have to provide a document that I’m asking for an interrogatory They just answer the question and those answers have to be under oath. And I’ll explain why that’s important in just a second.
8:40
I believe the requests for production have to be under oath.
8:43
And I believe there’s another set of questions called requests for admission.
8:49
The word requests is plural, and admission is singular.
8:53
I say that because almost every attorney makes that mistake, and they flip it around.
8:57
So anyways, these request that you admit certain facts or deny certain facts. You cannot ask for the admission of material facts that would decide the case. You can ask for side issues.
9:10
They’ll get rid of small disputes and just narrow the issues, OK. That’s the purpose of request for admission now.
9:16
If you don’t answered the request for admission within the time, it’s very strict.
9:22
It would be considered that you admitted each request, and they are written in a way that would facilitate the other party if you did not answer, or if you admitted the request for admission, It would facilitate the other party in getting a summary judgement.
9:36
So that’s why I try to do discovery as quickly as possible, and I try to use request for admission to try to set up my case so that I can win on summary judgement.
9:49
Lot of times, and all you really have to do is deny each allegation, You don’t. There’s nothing special.
9:54
You get if you get a list of requests for admission to be very careful, when you get documents from the other side, Look for that through every page. And make sure they didn’t slip it in there somewhere, OK? Because you don’t want to forget that you want to answer on time.
10:06
So you want to just simply deny everything. I mean, if you don’t even want to read it and do research, just go ahead and deny everything. Here’s the thing. If you deny it, it puts the burden of proof back on the requesting party.
10:17
And the way it works is, if the requesting party proves that the request should have been admitted, then you have to pay the costs of proving that.
10:27
Now, I’ve never seen that in 30 years of this, so, don’t be concerned about that, but it’s just, it’s just a game, OK. This whole thing is like some sort of, you know, strategy, so, it’s a game. So, we send these discovery requests. Now. There’s a couple of reasons why I do it this way: I want to send Interrogatories, because I don’t really care what their answers are.
10:46
All I really care about is who they have chosen to answer. The attorney cannot answer.
10:53
Now, law firms cannot represent people only attorneys, so make sure you know who the attorneys you’re dealing with, if you’re the defendant, make sure you look at the complaint and see which attorneys sign that pleading.
11:04
Law firms should be ignored.
11:06
Law firms cannot represent anybody, especially in court and it’s a crime.
11:12
If they try to do that, sometimes you’ll see a notice of appearance by the law firm, and I always object and moved to have it strict, and because it’s it’s illegal No law firm can appear in a court and represent a corporation. It has to be an individual attorney, or two attorneys or whatever they’re going to do.
11:27
So, you will, you should have a witness that is not the attorney, the attorney who does answer or assigned the pleading or whatever that is known as the Attorney of Record.
11:38
And if there’s a new attorney that comes into the game later, he has to give notice of appearance, OK.
11:45
So, the witness for the other side who answers Interrogatories gets a deposition notice, and this is the fourth type of discovery. I can request a deposition. Now, in my request for deposition, I just basically serve them a notice of deposition, I’m supposed to co-ordinate the time and date, and I’m not gonna get into the details of how to do that.
12:04
But I always challenge there, the person who filed an affidavit on the other side, with a deposition, and I, because I have a right to cross-examine their statements.
12:13
And I also have a right to cross-examine answers to my interrogatories and request for production. By whoever notarized had the job of answering my questions. It’s very important that use discovery in this way.
12:27
So the whole idea is I want to try to take advantage of a process. So that when I’ve gotten enough discover responses, or sometimes the other side wants to fight me on discovery, which actually is more advantageous to you if you can ask legitimate questions and they want to fight you on it and you can show that there.
12:46
They’re being evasive and they’re objecting and they’re not supposed to be. Or if they’re late on answering discovery questions, they only have 20 or 30 days. If they’re late, they waive objections.
12:59
So, if they’re late, and then they make objections, I move to strike the objections, because they’re not valid under the rules, so you can check your rules and see what I’m talking about.
13:08
The whole idea, here, and Discovery, is that I want to try to ask the Court, for summary judgement. Now, I cannot ask for summary judgement.
13:15
Um, if there are what’s called, genuine issues, of material, fact, and dispute, so, if there are facts that are important to the case, they are still in dispute or undiscovered.
13:28
I can’t legitimately get a motion for summary judgement granted. So if the judge sees I have pending discovery, he’s gonna say, hey, you shouldn’t be is too early or the other side is going to say no, It’s too early. We still have discovery. We have depositions scheduled and all this stuff so you have to be careful about when you’re asking for discovery. Make sure that you feel like all the material discovery is completed.
13:48
Same thing on the other side, if they asked for summary judgement first, use that against them.
13:54
When you ask for summary judgement, you have to put in an affidavit, but you cannot add new evidence, so it’s kinda tricky.
14:01
Same with the other side. A lot of times they won’t answer your discovery, but then they’ll ask for summary judgement and they’ll bring in all this discovery that the shooter produced earlier. And that’s when, you know, move to strike object by your own affidavit.
14:13
The way to be a motion for summary judgement is to have an affidavit that point, for point, controverts the statements and the affidavit and the other side summary judgement motion.
14:26
When you can identify to the court that there are genuine issues, a material fact, and dispute, you have a really good chance of getting their motion denied. Likewise, it works the other way around, so just be aware, that it’s a double edged sword, but it is a very good tool. So chances are, especially, if you don’t have an attorney, and it doesn’t mean you don’t know how to do this, But if you don’t have an attorney, they think that they have an advantage over you. They kind of do have an advantage because people that don’t have attorneys are treated unfairly.
14:52
So you gotta, you gotta really be on the top of your game here.
14:57
They may fall across motion for summary. But my opinion, what I’ve seen over the years is, whoever asked for summary judgement first is more likely to win.
15:06
So that’s why I want to do it this way.
15:08
So affidavits in support of a summary judgement should be on the facts of the case to try to narrow the issues and try to say, Look, this is These are facts that are not in dispute. These are facts that are non disputed. Hopefully those are the facts that would help you win your case. Those should be material facts.
15:27
So, you can win a case on a motion for summary judgement.
15:33
If there are no genuine issues, a material fact, and dispute, or if you’re entitled to judgement, as a matter of law.
15:42
So, let’s say there are issues affect and dispute.
15:45
Let’s say you’re getting sued on a credit card bill.
15:49
And let’s say you already admitted that you borrowed the money and you never paid it back, and, yeah, you know problem. You’d made everything, OK. And then you go and fight the case. You filed an answer, you admitted everything, and then you set up discovery in the cases proceeding, and then 2, 3 months into it. You file a motion to dismiss Or I’m sorry.
16:07
You could do a motion to dismiss, but you would file a motion for summary judgement, and you would say that you’re entitled to judgement as a matter of law, because, in this case, I’m going to I’m going to explain the plaintiff filed the case beyond the statute of limitations.
16:22
So, the technical language for that is that it was filed under filed in violation of the doctrine of latches.
16:29
So what that means is, I can win, because I’m entitled to judgement, as a matter of law. And the law says that you waited too long to sue me.
16:38
Doesn’t matter that I admitted it didn’t matter that case has been going on for awhile. But I have a right to prevail here on a matter of law. And the judge would have to agree with you, OK.
16:48
If he doesn’t agree, you can appeal it on what’s called Abuse of Discretion or an error or there’s other appealable criteria. I don’t wanna get into that too much as well. But, you know, sometimes it just takes a little appeal, and then it gets shut back down, Shot back down to the trial court, and then you resume, and you get the remedy you want. So, don’t be afraid of having to appeal something if it’s important to you.
17:08
Now, along this process where you’re doing Discovery and maybe the other sites not co-operative, or you can’t get something done and you need the court to intervene. And maybe there’s some summary judgement issues, you can have what’s called a case management conference, and that is designed to resolve issues. Now, you can look in the federal rules of civil procedure, and you will see a list of items. I think it’s like 12 long. There’s like 12 different reasons why you might have a case management conference. So, just keep that in mind.
17:36
It’s very, it’s a very useful tool to kind of clean up the case and, and get things back on track if, sometimes, you know, sometimes the attorneys being a jerk, or sometimes you’re being a jerk and sometimes they need to try to you know, get it back on track and clean things up.
17:49
So it’s a good thing, That is also a time to hear pending motions that may dispose of the case.
17:56
Another time to do that is that pretrial.
17:59
So sometimes a pretrial conference is also a case management conference and it is a time to hear what’s called dispositive motions. These are emotions that would dispose of the case and they’re supposed to hear those motions first. So it could be a motion for summary judgement.
18:15
It could be that in across motion for summary judgement, It could be a motion to dismiss, OK, dispositive motions.
18:23
If we get past that.
18:25
It is to the advantage of the person, in my opinion, that it does not have an attorney, who is a defendant in a debt collection case, for example.
18:32
If you can increase the cost of litigation legitimately pushing it to trial, the chance that the bank will want to proceed is, is smaller.
18:43
Now, sometimes they will.
18:44
And banks and Citibank, they have unlimited funds, but it’s not about that, It’s about the attorney because it costs him a lot more to collect what than other attorneys, He’s less likely to get repeat business from the bank.
18:59
So that’s really in your advantage, and also they really hate trials.
19:03
They probably, But they’re discourage that. Thanks. And attorneys are discouraged from trials, more than you would be. Believe it. Or not, they don’t want them, is not that scared. But, they don’t want to go through the hassle.
19:13
If you can push and pass summary judgement and get them into a trial date scheduling, then you’re probably going to get a withdrawal of the case and you could get a win.
19:25
That’s really unusual, but you couldn’t get it withdraw the case, OK? And sometimes the withdrawal doesn’t come until like a day, a day before the trial. They really like to just see if you’re gonna get nervous and turn it back off and offer a settlement or something like that.
19:37
If you want to settle, never offer a settlement, let them come to you. You push that case and make it expensive and push it and push it, and then they’ll make them give up.
19:46
Make them say, Hey, can I just settle?
19:49
You know, would you take this much?
19:51
Then, by the way, don’t ever settle on a credit card case unless they dismiss it with prejudice and you don’t pay anything.
20:01
So, then you have trial.
20:04
This is, you know, quite involved, but look at it this way.
20:06
You’ve been hearings before. You’ve seen him on TV. Basically.
20:09
you go there and try to get the judge to agree with something to give you, you know, something that you want. Maybe you want some discovery. Maybe you want a motion granted, or whatever.
20:18
The purpose of a trial is among those things.
20:23
You’re trying to dispose of the case, but in this case, on a trial, you’re collecting evidence from both sides. And everybody gets to cross-examine witnesses. It is kind of, like you see, on the TV series, Law and Order, it is kind of like that, kind of, like that.
20:34
Um, it could be a truck, could be five minutes. A truck could be five days, a civil trial for judgement, you know, like at money collection. Typically, there are four hours.
20:45
You Mark exhibits, you give testimony.
20:49
You can cross-examine witnesses and things like that.
20:51
If you really want to win a case, what I suggest is, if it’s a debt collection, first of all, what I suggest is make yourself uncollectable and you’ll see, and, you know, my materials, that this is really my strategy.
21:02
But if you have to be in a case, I just I wanted to give you this overview.
21:06
So, you can kind of see the anatomy of a civil proceeding and I know I’d probably talk fast, but you can slow the video down or, you know, listen to it again.
21:15
Um, there, there are post judgement things, so for example, let’s say you lose, the only detriment to that is the bank, OK, In this example, Citibank can call you in for deposition once a year to discover assets. So, that’s why I say make yourself Uncollectable, and, you know, you’ll get more information on that through my other videos.
21:36
And that way, you can go to the deposition and tell the truth, I don’t ever tell you to lie, don’t recommend that.
21:42
Just tell the truth and doing that will demonstrate that your uncollectable, and it doesn’t make sense to try to, you know, try to seize assets because there’s nothing that is able to be levied against OK, um, there is also, there are also things called post judgement.
21:58
That’s post judgement discovery, OK, when someone gets a judgement against you and then can ask questions about your assets, so, there’s a difference before a judgement or before trial.
22:09
The plaintiff can ask you questions to establish the liability and how much the liability is, OK, to prove the contract to prove the debt. And then prove how much the debt is. So there’s two kinds of things they’re trying to prove in a pre trial, that proof of the liability.
22:25
And then proof of the debt, the amount of the debt. You can get a summary judgement on one or more. Both of those, you can get a partial summary judgement on liability and then you can have a trial only on to determine how much of a liability it was in terms of dollars.
22:40
Um, when it’s post judgement, they can only ask questions, and they only need to ask questions about where you have assets where you have income, where you kept stuff they can take now a lot of attorneys we’ll try to do post measurement discovery before the trial because they’re so arrogant, they disbelieved they’re going to win and a lot of times, they are just because the judge helps them out, OK.
23:01
Um, So you have to be aware, during the discovery process, if they ask you questions, be aware. If it’s a question that pertains to the location and value of assets, or cash in the bank, or wages and things like that.
23:14
That don’t go go towards establishing whether or not you actually owed the debt or proving the allegations and the questions that don’t go toward proving how much of the debt that they’re claiming is valid.
23:26
OK, that’s the limitation that those pretrial questions should be about the liability and how much the liability is not about where you have assets.
23:34
So just be aware that there’s a distinction and then post judgement discovery They’re limited to one deposition a year. That’s expensive and they’re not going to normally do that. Like maybe one in one thousand cases will do that, it’s really unlikely.
23:49
And, lots of times, if they do any discovery, it’s going to be a questions in the mail, which are called Interrogatories.
23:55
And if you answer those questions within the time, these are, it’s 30 days, if you send back the answers in the mail, The attorney will he won’t follow up with a deposition because he wants to avoid costs as well.
24:08
And, uh, if they are going to do that type of Discovery, usually it’s once went, that’s it one time and maybe they might do it another time, right? When the statute of limitations expires, the Judgement link.
24:19
And if you want to know what that is, you can look it up in your State statutes on a statute of limitations for judgement liens for unsecured judgement Lane’s.
24:29
Usually it’s it ranges from I believe six years.
24:33
Well, typically 6 to 7 years. Some states allow you to renew the judgement for as much as 20 years. I’ve never seen it more than 20 years on credit card type cases.
24:43
California, for example, will allow a judgement to be good for 20 years, and they can use it to collect for 20 years from the date when it’s recorded. In Florida, it’s seven years.
24:55
But it has to be renewed every seven years. So in Florida, you can renew a judgement after the first seven years to make it 14 years, and then you can renew it one more time for only six more years.
25:06
So they can renew it only twice for a total of 20 years. And if they missed the window to renew it, which I think is six months before it expires, they can never renew it again.
25:15
OK, so, I hope, that helps, you, understand, kind of, the landscape of a civil lawsuit.
25:23
And, there’s a bit of strategy therewith using discovery, and it’s really about, in the beginning, it’s about establishing whether or not the court has the right to hear the case, or the obligation to hear the case jurisdiction.
25:37
And then, once we get past that, so, the case kind of is in three parts, you have the, the preach, sorry not you have the pleadings, see the motion to dismiss the complaint. The answer, the cross complaint, if you have. You want to counter assume you have a countersuit. You have a cross suit, like if someone sues you, you can then see if someone else has all kinds of things. And then when that time period is finished.
26:01
That’s called the close of the pleadings and then, between that period when the pleadings are closed and the time for answer is filed and everything is completed, then you have until pretrial.
26:14
That’s the middle third of the case And then from preach, for the end from end of pretrial that hearing date on pretrial, then you have your trial preparation time period.
26:26
So that’s the last third. That’s generally how it works. And your friend in these cases is going to be discovery.
26:33
And the weak link they have is the fact that their witnesses lack the personal, firsthand knowledge that are required of witnesses.
26:41
And they have to have an affidavit as a formality, And you’ll you’ll read carefully.
26:47
You’ll see those affidavits testify about the individuals’ knowledge of the plaintiffs accounting records. But do not have personal firsthand knowledge of the actual facts related to the purported debt with their claiming to be the debt that you owe. Like, for example, that witness didn’t witness, you spend the money, or borrow the money or witness, you execute the contract.
27:09
OK, I’ve never seen that anyways.
27:12
So, that’s how you have this bit of a weakness here. And that’s why I say you want to comment for a deposition and what will happen is the attorneys will fight tooth and nail because they know that those witnesses are fake.
27:22
And they know that once you get them into deposition, you can take the transcript and have the pleading stricken because there is no witness so without a witness, they basically have no case. And all you gotta do is discredit one of the witnesses.
27:35
Now, sometimes the courts are corrupt and I don’t want to get into that much, but that is the ideal or theoretical process of a typical civil lawsuit, So I hope that gives you guys a little compass.
27:49
And, of course, there’s a lot more than that, but that’s bit of a framework there for you.
27:54
All right, hope that helps.