Friday, August 9, 2013

Pro Se Defendants Court Defeat and Default Judgment, if not Disaster



COMMON ERRORS BY UNREPRESENTED LITIGANTS

Stasis & Default:  Not doing things that need to be done.

Debt suit defendants typically know little or nothing about the rules of procedure and thus suffer the adverse consequences for not hiring a lawyer (or not being able to afford one) to explain matter to them, or do what needs to be done on their behalf. As a result, debt collection attorney’s “win” a lot of cases simply because the case is not contested at all, or because the defendant makes a serious error that relieves the plaintiff from proving its case.   

Failure to file an answer

It does not take much to prevent a default judgment. All that is required is the filing of an answer, and the courts are very lenient when it comes to judging whether a piece of paper qualifies as an answer. Even a letter to the judge may do, although the rules that require a copy be sent to the opposing party’s attorney would still apply (and would likely be ignored).

Many defendants, however, do not only fail to hire a lawyer, but fail to take any action at all, thus inviting what in most cases is highly predictable, a default judgment.

Failure to answer REQUESTS FOR ADMISSIONS

Same for requests for admissions. Doing nothing has grave consequences. Not answering them will result in deemedadmissions by default. It may be understandable if a defendant does not want to believe that they are due within 30 or 50 days as stated on the paperwork. After all, it’s the attorney that’s suing them that says so; -- the same attorney that also writes “all information obtained will be used for debt collection purposes” or something to that effect.  But the defendant’s distrust or wariness about providing information does not suspend the operation of the deemed admissions rule. It does not matter that the Defendant took the FDCPA warning seriously and a refused to provide the information that was requested.

Unnecessary judicial admissions

Some unrepresented litigants may feel a need or urge to respond, and do so in writing. Most don’t know that under the Texas pleading rules they can answer with a general denial. Instead they volunteer information that is superfluous under the pleading rules, and may amount to judicial admissions that can be used against them. 

Luckily, the Texas Rules of Procedure are very liberal with respect to amendments. If a pro se litigant were to have filed an inappropriate answer but retains a lawyer before a dispositive motion is filed and heard, or the case goes to trial, the error can be fixed by filing an amended answer. Even if the deadline for amendment set by the seven-day rule or a docket control order has passed, a newly-retained attorney can file a motion for leave to amend the pleadings, which the court will probably grant. 

RELATED TOPICS AND [FUTURE] POSTS

Screening of motions for default judgment by the court and denial based on deficiencies
            Sample default judgment checklist
Protecting unrepresented defendants from losing by default
Resources for unrepresented litigants

EXAMPLES OF VERBOSE PRO SE ANSWERS THAT VOLUNTEER TOO MUCH INFORMATION 


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