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Trial. If you are like most attorneys, the thought of your trial makes you a little nervous. Essentially it is a debate with real world consequences. Except with this debate, it is full of procedures and rules that you likely aren’t even aware of. In this article I would like to share with you the secret to winning at trial. It is one word. Preparation. If you are prepared to present your defenses and poke holes in their case, you will give yourself the best possible chance at winning your debt collection case.
If you will actually do each of the following suggestions you may not only win your case, but it will relieve a ton of anxiety as you head up to that day. So, let’s get you ready to go…
This sounds stupid, right? But I talk with a lot of people that aren’t totally sure where the courthouse is. Or they may know where the building is but not sure where the actual courtroom is located. Before the day of trial arrives go to the courthouse, go in and find what courtroom your case will be heard in. Better yet, call ahead and see if your judge has any trials going on in the week or so leading up to your case. You can go and sit in the back and watch how your judge handles the courtroom, how he handles witnesses, and what procedures are followed.
Many newer attorneys will do this. When I was in law school I worked as an extern for the federal bankruptcy judge in Las Vegas. This job didn’t entail too much work and gave me the great opportunity to sit in the back of the courtroom and just watch the hearings and the trials. You will be amazed at how much you learn by just sitting and watching.
One more thing about going to the courtroom, learn which table you sit at. Generally there are two tables – one for the plaintiff and one for the defendant. If there is a jury box (the chairs where the jury sit) then the defendant usually sits at the table furthest away from the jury box. The plaintiff will sit the closest. For some reason I always remember this by thinking back to my days as a criminal prosecutor. I thought that the reason they had the defendant sit away from the jury is so that if they found him guilty he couldn’t jump out and get them! That is not the reason (at least I don’t think it is), and actually, it is actually pretty ridiculous, but it helps me remember.
Little things like knowing where the courtroom is, knowing where to sit, and knowing what the courtroom procedures are will really put your mind at ease as you prepare for your trial.’
Hopefully you have been keeping all of the documents associated with your case. Clear off the kitchen table, take your documents out and put them in chronological order.
READ OVER ALL THE DOCUMENTS. I don’t mean to yell, but you need to carefully read over all of the documents. Know and understand what the plaintiff is alleging. Look at the documents they have provided you. Do they prove or support what they are alleging? Read them several times. Know them. Love them. Read them.
It is really easy to prepare your defenses if you know what they are. So, do you know what they are? The easiest way to understand your defenses is by focusing on what the plaintiff needs to prove. In the typical debt buying case they will need to prove two things to win:
(1) that there was a proper sale of debt from the original creditor to the debt buyer.
(2) What the actual amount owed is.
It is important to note that if the debt buyer can’t prove the first prong, they don’t even get to the second prong. The debt buyer MUST prove that there was a proper sale (sometimes called an assignment) of the debt. If they can’t prove they own it, they can’t sue on it, and they lose.
The debt buyer will likely try and prove their case with evidence that is not admissible. The reason is that it will likely be documents or affidavits created by the original creditor. Such documents are hearsay. Read the Rules of Evidence, Rules 801 and 802. Then, you need to read up on Rule 803(6). This is the business records exception to the hearsay rule. You should read this and then go back and listen to my podcast #8on how you can use these rules to help you keep out documents that shouldn’t be admissible under the law. You must understand these rules. Your ability to understand and present these rules will be your key to victory.
In most trials you will likely be asked to give a brief opening statement before the trial begins and a brief closing argument after all of the evidence has been presented. The opening statement should be short and express what you expect the evidence to show. For example, you can stand up (always stand when addressing the judge) and state that the evidence (or lack thereof) will show that the debt buyer is not the appropriate party to this case and they will be unable to show that they actually own this debt.
When it comes to your closing argument this is when you can let loose. You can stand up and go over the lack of evidence that the plaintiff has provided and that they have utterly failed to meet THEIR burden to prove that they own this debt. Remember, you don’t have to prove a thing – it is the plaintiff that must prove they own the debt and how much it is.
Think about what you would like to say, but don’t write it down word for word. Use an outline. Hit your points, and then be done.
The more you prepare the less nervous you will be and the better you will do at trial. Note I said less nervous. Even attorneys who do this every day get nervous. Understand that now that no matter what you will be nervous and just deal with it. But if you take the steps outlined above, you are putting yourself in the best possible position to walk out of that court with a judgment in your favor.
In the next article I will go over what to expect on D-Day – your day of trial.
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photo by: j3net