If you’ve been sued for a debt, you probably have no idea what comes next. There’s quite a few steps to the lawsuit, but one question you might ask is how long will it take to resolve this? In reality, it can take months and possibly over a year depending on the court’s calendar. But this is something you can use to your advantage by leveraging the time to judgment in your favor by negotiating for a settlement.
What is the actual timeline?
This will depend on your case and court. Your state’s court will likely have rules governing how long a case should take before it goes to trial. After you file an answer to the summons and complaint, the parties must exchange “initial disclosures.” Basically, this is a list of witnesses and documents you plan to use at trial to prove you don’t owe the debt. After the parties exchange these disclosures, the court sets a time period for “discovery.” The court sets aside this time for the parties to find and gather any additional information they may need to prove their case at trial. Some tools you might use during discovery are subpoenas for documents (sent to non-parties), written discovery requests, or depositions, to name a few.
Although your case will not likely be in Federal court, we will use the Federal court rules as an example. Under Rule 26 of the Federal Rules of Civil Procedure, after the parties exchange disclosures you would have to speak with the other attorney and confer on how much discovery time is needed. After that meeting the judge would set a hearing to discuss the amount of time needed and would enter an order giving you a deadline to complete your discovery tasks.
At the end of that time period, the judge would schedule another hearing to set a trial date. Your trial date could be soon, or it could be months away, depending on the judge’s availability and the method in which that court sets trial dates.
Regardless, the most important thing to know is that the court sets deadlines in all cases that you must follow. In some cases the judge will issue an order (commonly known as a “case management order”) and in some cases the dates will be automatically set by court rule. If the dates are set automatically you will be expected to know the dates without anyone telling you, which is why it is so important to read the court rules and learn the dates. Make sure you always meet the deadlines!
What do I need to do during this time?
This will depend on your case. You are allowed to conduct discovery during this time. There are several types of discovery you can do, including:
- Written discovery requests to the plaintiff
- Depositions
- Subpoenas (written requests to non-parties to produce documents to you)
- Hire expert witnesses (for example, if you argue that the contract governing your debt is illegal, you could hire a contract expert witness).
You may not have to do any of these things, however. Depending on your case, you have enough evidence to defend by simply testifying yourself and presenting the documents already in your possession. In that case you would want to just wait until the judge sets a trial date.
No matter what type of discovery you do, you want to make sure that you have the evidence you need to defend your case. You also need to make sure that you provide the name and contact information of every witness who will testify on your behalf (including your own) and provide a copy of every document you plan to use at trial. Trials don’t work like they do in Perry Mason; you can’t surprise the other side with evidence you haven’t already disclosed. So make sure you identify all evidence to the other side by serving them with “disclosures” listing the witnesses and exhibits you will use.
Can I extend the time to conduct discovery?
Courts usually allow for requests to extend the time for discovery. For example, if you need some documents to prove your defense but those documents are held by another person, you could send them a subpoena. If you haven’t received the documents by the discovery deadline you could ask the court to extend the deadline so you have time to obtain and disclose the documents.
You can request an extension by a couple of ways. First, you can stipulate with the other party to extend the deadline. You can do this by drafting a document that both parties sign and which tells the court that the parties agree to extend the deadline until a specific date. Different courts handle stipulations differently, so you’ll need to check your state’s court’s rules. Some courts will just accept the stipulation. Other courts may require the judge to sign an order approving the stipulation. In some cases a judge may deny the stipulation. This usually happens when the parties have extended the deadline multiple times already. In other cases the judge may not immediately approve the stipulation and may ask the parties to appear at a hearing to discuss how much time the parties need.
If you cannot convince the opposing party to agree to an extension of time, you can file a motion requesting additional time. A “motion” is a document that asks a court to take a specific action. If you file a motion for additional discovery time, the opposing party has a set time period to respond. You can then file a reply to the opposition, and then you can submit the motion for the judge’s decision.
How can I leverage the timeline in my favor?
Debt collection attorneys want to resolve cases quickly. They receive payment only if they collect the money. And because debts can be difficult and time consuming to collect, attorneys need to collect on a large volume of cases. This means that cases that take a long time to resolve, or cases on which they need to spend a lot of time aggravate the attorneys working on those cases. If you can show the attorney that you are serious about defending the claim and demonstrate that they will need to spend a lot of time to work on your case, you now have an advantage.
You can use this advantage in a few ways. If you take extend the time for recovery and require the opposing attorney to use a lot of time, you may get lucky and have your creditor drop your case. If that happens, you win and you owe nothing. If you aren’t lucky enough to convince the other side to drop the case entirely, you can leverage the time to obtain a more favorable settlement. Remember that the attorney wants to get out of the case quickly and still get paid. You may be able to use the threat of additional time and work to negotiate a lower settlement amount.
In summary, it’s difficult to say how long your case will take. If you don’t file an answer to the summons and complaint the case will be short because you will lose quickly. If you show the other side you are serious about fighting the case and require the attorney to spend a lot of time pursuing the case, you could negotiate a favorable settlement or convince the other side to drop the case entirely. The longer you can extend the case, the more likely you are to obtain a favorable resolution. You should be prepared to defend your case for months or even more than a year.
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