7 mistakes you don’t want to make when testifying in a debt collection lawsuit trial
7 mistakes you don’t want to make when testifying in a debt collection lawsuit trial
The explosion in debt collection lawsuits has resulted in a staggering number of default judgments. We are doing our best to educate Alabama consumers to not allow a default judgment to be entered against them.
- File bankruptcy — normally a terrible idea.
- Fight the lawsuit on your own — this article will help you in doing this.
- Settle the lawsuit on your own — occasionally this can be smart.
- Hire a lawyer to fight the lawsuit — if you go to trial this article can help you.
- Hire a lawyer to settle the lawsuit.
(If you want to see how we handle matters when we are hired — check out this series of articles/videos on debt buyer lawsuits in Alabama).
But what do you do when you are at trial giving testimony? This question is why we wrote this report.
Unless we actually represent you, then you should know that we cannot give you legal advice. We won’t share all of our strategies as we know collection lawyers love to read our reports and watch our videos.
TELL THE TRUTH! THE SIMPLE RULE OF TESTIFYING…..
But we can tell you that testifying in debt collection lawsuit trial has one central rule – tell the truth. Everything flows from that. The rules of evidence are designed to make sure that what we hear from a witness in trial is simply the truth.
Over the years of representing hundreds of clients in trials and depositions we have learned a few mistakes and bad practices that can hurt your ability to be an effective witness in the courtroom and convince the jury or judge that you are telling the truth.
So we have written this report to share with you some of this knowledge and experience and hopefully help you prepare yourself for testifying in your lawsuit where the debt buyer has sued you.
This report is not intended to be nor is it actual legal advice. No lawyer can advise you what to do in your specific situation without knowing your specific facts. The information provided in this report is for educational purposes only and does not contain all of the exceptions that may apply to your particular unique situation. Therefore, you should not rely upon the information in this report. Instead you should consult with a knowledgeable attorney who can fully explain your options when dealing with a debt collection lawsuit.
The Alabama State Bar requires this disclaimer: “No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.”
THE SEVEN MISTAKES
There are many things that can prove fatal to your case when you have been sued by a debt buyer in a debt collection lawsuit. We understand that by providing this list (related to testifying) that we are leaving some things off but we picked these seven items because these are such common ways to get yourself in trouble and to cause you to lose your case. By avoiding these we are not saying you will win – but avoiding these items will generally help you to be as successful as possible.
I. FIRST MISTAKE – SPECULATING INSTEAD OF TELLING THE TRUTH
Tell The Truth
You must tell the truth. You have taken an oath to do so and the penalty for not telling the truth is that you have broken that oath and could face perjury charges for not telling the truth.
Speculating – What Is It?
So, what does telling the truth have to do with “speculating?” It means you cannot ever speculate. Speculate means “to take to be true on the basis of insufficient evidence” according to Merriam-Webster dictionary. Alabama Rule of Evidence 602 is entitled “Lack of Personal Knowledge”. Here is what it demands of evidence that is to be presented in courts in Alabama:
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witnesses’s own testimony.
So you must have personal knowledge. In our everyday language – you have to know what you are talking about before you start answering under oath. If there is a question you are asked and you do not have sufficient information to know whether it is true or not, but you say “yes” or you say “no,” then you are speculating. You are guessing. With no basis to do so. Here’s how it works in a debt collection trial.
How You Are Asked To Speculate In A Debt Collection Trial
The debt buyer must prove it owns the debt it is suing you over but normally the debt buyer is reluctant to bring witnesses to trial to prove this (see our “Five Secrets Debt Buyers Don’t Want You To Know About When They Sue” for more information). So the collection lawyer decides “Ah, I will get the defendant/consumer to admit that we own this debt.”
Bill Of Sale
The collection lawyer will show a document that the lawyer claims (we say “claims” because the lawyer can not testify and what he or she says is not evidence) is the “Bill of Sale” showing that the debt is owned by the debt buyer. This will normally be a single sheet of paper with perhaps a second sheet showing your name and account number.
The collection lawyer will ask you if you understand that the debt buyer bought this debt from the original creditor (or from a debt buyer who earlier bought it from the original creditor). Let’s examine this question in light of telling the truth and not speculating:
Q. “You agree, don’t you, that my client bought this debt from the original credit card company that you owed money to, right?”
First, how would you know (“have personal knowledge”) if the lawyer’s client bought the debt?
All you have to go on is the single sheet of paper. Who created this paper? Is it true? A forgery? Is the debt buyer giving its lawyer false information? Where’s the rest of the document? It says there is a “Credit Card Account Purchasing Agreement” but is that included?
Think of it this way.
Two companies secretly make a deal to buy and sell debts. This is fine. Nothing in the world wrong with this. But they do it secretly. (Funny but true – when we ask for the full agreement, even the collection lawyers tell us they haven’t even seen the full document! These debt buyers think their precious agreements are like the formula to Coke!) How would you possibly know what these companies did secretly? How could you know? You weren’t there!
This lawyer, by voice and body language and facial expression is saying “Trust me – this document is real and authentic (even though I don’t have the complete document and my client won’t let me see it)” in order to pressure you. Pressure you to do what? To speculate that this one piece of paper really means that your debt was sold from the credit card company to the debt buyer that is now suing you.
This question is as absurd as this one:
Q. “Admit that Brad Pitt and Tiger Woods talked by phone about their golf swing on June 11th at 3:33 pm.”
Now, you might find it believable if Brad Pitt or Tiger Woods came into court and said this. But if there was a lawyer standing there with a scrap of paper that supposedly was from Brad Pitt that said “I talked to Tiger about golf swings on 5-11-13 at 3:33 pm” how could you possibly know if this was true? You can’t!
And all of the facial expressions or grunting or sarcasm or intimidation techniques that a debt collection lawyer may use can’t change a thing. You would be speculating. You have no idea if these two men talked, when they talked, or what they talked about.
Remember this is not a casual conversation. You raised your hand and swore or affirmed to tell the truth. This deadly serious. Don’t let some sarcastic collection lawyer intimidate you into making up an answer and violating your solemn oath. Don’t speculate. If you don’t know, you simply tell the truth and say “I don’t know.”
Affidavit of Ownership
The collection lawyer will often show you an “Affidavit of Ownership” that basically says the debt is owned by the debt buyer.
Now, affidavits are not admissible in District Court in Alabama during trial unless you agree to it. Judges have discretion in Small Claims to allow them but normally won’t when they go to the critical issue of ownership. The reason is you have the right to cross examine a witness who testifies against you. But you can’t cross examine a piece of paper.
You have no idea (no “personal knowledge”) if the affidavit is real. Some of these affidavits are signed by people who have admitted they sign hundreds of affidavits an hour. So do you think they really know that the information is true if they are looking at it for less than 20 seconds before “rubber stamping” a form affidavit?
About whether the affidavit is true, here is a question you may be asked:
Q. “What information do you have that this affidavit is untrue or inaccurate?”
Similar to the above discussion of the bill of sale, how would you possibly know? You are being asked to speculate that it is true or untrue. How can you honestly testify that it is true or untrue? You can’t! Don’t speculate. Instead, tell the truth. “I don’t know whether this is true or not.”
Bottom Line Of Speculating
If you speculate, you may be admitting something that simply is not true. So, if you speculate and tell the judge, for example, that you “know” the debt buyer really owns the debt, then don’t be surprised when the judge accepts that admission and rules against you. Hard to complain later that you were just wrong or felt pressured because the lawyer looked at you in an arrogant way. Solution? Don’t speculate!
II. SECOND MISTAKE – ANSWERING A QUESTION YOU DO NOT FULLY HEAR
You must make sure that you actually hear the question before you answer it. We know this sounds so basic but this is important.
Why Do I Need To Hear The Question?
You have to tell the truth, right? Well, if you don’t hear the question – and we mean every word of the question – how can you tell the truth? If the lawyer asks you a question and you only hear part of the question, how can you know (remember – NO speculation!) how to answer a question truthfully when you did not hear the entire question?
Example Of Not Hearing The Full Question But Instead Assuming Or Speculating
Here’s an example:
Q. “Do you admit that you owe ……. money for this credit card?”
If you answer “Yes” because you think the question was “owe the credit card company” then you are taking a huge chance by speculating. The question might actually have been “owe my client money for this credit card” and you answered “Yes” which is speculation. You must be very careful answering questions to make sure you are answering truthfully and honestly which you can’t do unless you hear the question.
What do you do if you haven’t heard every word of the question? Simply ask the lawyer to repeat the question. If the lawyer refuses to repeat it, then in our experience the judge will not expect you to answer a question you didn’t hear. If there is no question asked, no answer is required.
Please don’t make this mistake of answering a question you did not hear! Make sure, instead, that you truly hear the question before you start to answer it.
III. THIRD MISTAKE – ANSWERING THE QUESTION WITHOUT UNDERSTANDING IT
Remember the number one rule to telling the truth is to not speculate. So you heard the question but let’s say you don’t understand the question or every word of the question.
Keep in mind that at your trial you are not having a conversation with the collection lawyer – instead you are in the middle of an interrogation. The difference is the goal of a conversation is to understand each other. The goal of an interrogation is to get information (that is answers) out of the person being interrogated. Particularly to get admissions or confessions.
So, if you don’t understand certain words and you still say “No” or whatever your answer is, and that fits the collection lawyer’s picture of how he wants the case to turn out, will he be concerned about whether you understood every word? Probably not, as only you know if you understood the question.
Whether the question uses uncommon words, or is just confusing, the bottom line is you should never answer a question you don’t understand or else you violate the rule against speculating. Here are some examples of how this works in court:
Example Of Uncommon Words
Q. “Do you agree that it would be an unjust enrichment for you to not pay my client?”
What does that mean? “Unjust enrichment” is a legal phrase that has certain meanings and certain exceptions. Most people (including lawyers) don’t use this expression. If you answered that question with a “Yes” (without understanding what it means) then you may have just agreed to a verdict being entered against you. Hard to go back and say that you did not understand what it meant. It’s much better to say this up front – “I don’t know what that means – can you explain it or rephrase it?”
Example Of A Confusing Question
Q. “You agree you owe the original credit card company and you know my client bought it so can you agree, or do you disagree, that you owe the money on this card?”
First of all this is an objectionable question but beyond this, what does the question ask? That you owe money on the card? But to who? If you say “Yes” the judge may interpret the question to mean “owe the debt buyer” while you thought it meant “owe the credit card company.” Again, the solution is to ask for clarification – “I’m sorry – I’m confused on what you mean. Can you rephrase that question so I can understand it?”
Don’t Let The Collection Lawyer Intimidate You
It is simple but so powerful – we don’t answer questions that we don’t understand as otherwise how will we know we are telling the truth? No matter what the other lawyer may do – what facial expressions – what he or she might say – you do not have any obligation to answer any question you do not understand. If for some reason the lawyer will not make it understandable, you can simply say, “I don’t understand your question so I can’t answer it.”
But Will I Look Silly If I Ask For Clarification?
Sometimes clients are reluctant to say they didn’t understand a question because they fear it would make them look silly. First, it does not matter what the other lawyer thinks of you. What matters is your testimony must be truthful. Second, most questions that are not understandable are that way because the lawyer asked questions in a confusing way – not because of you.
Don’t answer anything you don’t understand! The only way to be truthful, and not speculate, is to hear the question and make sure you understand it so you can give a completely honest and truthful response.
If you hear and understand the question, then make sure you don’t commit the fourth mistake of not thinking about your answer before you answer….
IV. FOURTH MISTAKE – NOT THINKING ABOUT THE TRUTHFUL ANSWER BEFORE ANSWERING
After hearing and understanding the question, you want to simply take the right amount of time to think about what the truthful answer is to the question. Well, “How long is the ‘right amount’ of time?” That’s easy – whatever amount of time it takes you to be able to truthfully answer the question.
Some questions will be easy – “What’s your name” for example. Others will take you some time to think about – “Describe each and every time you used your credit card in the six months before you defaulted” – you will want to carefully consider this question so that you truthfully answer the question.
Avoid Inaccurate Answers Made From Rushing Your Response
You want to avoid making a “snap” answer and then having to go back and correct it. This can happen if you answer without thinking about it. So take a moment and think about the truthful answer.
Take Time To Answer To Avoid Getting Run Over By The Collection Lawyer
Often lawyers will summarize a bunch of testimony by asking you very short and simple questions that should all be answered “Yes”. But the last question is untrue and answering “Yes” will be fatal to your defense. So if you are not careful you’ll get caught up the “rhythm” of answering every question “Yes” and not pay attention to what is being asked. By taking the time to think, you will help yourself not to fall victim to this trick that collection lawyers use. Listen to each question and answer each question truthfully.
By forcing yourself to take a brief moment to consider the truthful answer, you help yourself make sure you are not speculating but instead are telling the truth. Now, you are ready to answer the question. Just make sure you only answer the question asked…..
V. FIFTH MISTAKE – ANSWERING QUESTIONS THAT HAVE NOT BEEN ASKED
Once you have heard the question, understood it, and thought about the truthful answer, the time has come to answer (not speculate but to answer) the question and only the question. In some ways, this is the hardest thing to do when testifying.
Why Is This Hard?
The reason is that often collection lawyers ask questions that “suggest” something negative. For example:
Q. “Isn’t it true that you made charges on this card but then refused to pay it off?”
The factual and truthful answer may be “Yes that’s true” but we want to add a “but I lost my job” or “but I had a heart attack” or some similar answer. We don’t want to leave the wrong impression, so many consumers who are testifying start to “explain” or “argue” or “expand” their answers.
Your obligation is to simply answer the question. Your obligation is not to argue or explain unless you are asked to explain. You have to trust your lawyer to know what points to make in a trial or otherwise you start becoming more of an advocate or lawyer than a witness who is simply answering questions in a truthful way.
Speaking of lawyers, another common mistake is to try and outsmart the collection lawyer….
VI. SIXTH MISTAKE – TRYING TO OUTSMART THE COLLECTION LAWYER
You Are Not The Lawyer – Instead You Are A Truthful Witness
We have often seen consumers get out of the effective role of simply answering the question truthfully and, instead, step into the very ineffective role of trying to outsmart the collection lawyer. This occurs when the consumer tries to anticipate where the collection lawyer is going with his or her questions and how the testimony can be shaped or modified to frustrate the collection lawyer.
We cannot over emphasize this so we will repeat it again:
Your obligation is to simply be a truthful witness.
Your obligation is to simply answer the questions truthfully even if you’re representing yourself. It is so common to see consumers either forget this, or not understand it in the first place, and so their testimony becomes very argumentative and they appear to the court to be obstructing justice instead of answering truthfully. Remember, your obligation when you take that oath is to answer truthfully.
You may realize where a collection lawyer is heading in her questioning of you.
It is okay to recognize this but it should not influence your testimony. This has nothing to do with whether the collection lawyer is smarter than or not as smart as you. It simply has to do with the system where one person is questioning another. Over the years that we have tried many different types of lawsuits, we have noticed that the thing that we want the most from a witness that we are cross-examining is to argue with us and try to be difficult. There are very few things that turn a judge or jury against a witness more than somebody who, to put it bluntly, is simply a jerk.
Even if you’re representing yourself, the time to make arguments and to draw conclusions and to suggest to the court what you think should happen is not when you’re being examined by the collection lawyer.
Maintain Your Credibility As A Truthful Witness
Keep this in mind. The judge in a debt buyer lawsuit doesn’t know if you are telling the truth or if the debt buyer is telling the truth. All the judge can go on is the evidence that comes into the court. Primarily that testimony will be from the witness stand. So you want to do everything possible to enhance your credibility and your believability. Don’t try to annoy, or interfere with the collection lawyer’s examination of you — instead simply answer the questions truthfully.
Speaking of your credibility and believability, the final mistake that we often see consumers make in debt buyer lawsuits is having the wrong courtroom appearance…
VII. SEVENTH MISTAKE – HAVING THE WRONG COURTROOM APPEARANCE
What do we mean by the wrong courtroom appearance? There are several things that we will discuss in this section and, if we represent you, we will tell you other items in our face to face meeting to prepare you in the best way for your trial.
Show Up Early
This seems so basic that it is amazing to see defendants appearing in court late. There are some judges that, if you are not exactly on time, will enter a judgment against you. Most judges, however, will make a second call of the docket usually 15 or 30 minutes after the original call of the docket occurred. But even if the judge allows you to be late, remember that this can have an impact on your credibility.
Most of us do not like for people to be late when we are waiting on them. Judges are human also and in our experience they become somewhat annoyed just like the rest of us. Why would you do anything to cause the judge to have anything but positive feelings for you? The solution is to be early. If your trial is at 9:00 then plan on being in the courtroom at 8:30. In most court houses you will go through security and so you need to allow for time to park and get through security and then find the courtroom.
We are not saying that you have to wear your finest dress or a tuxedo. We do suggest that you dress in a manner that reflects your respect for the court and for the judicial system. Whether or not it is fair, we all judge people by the way that they are dressed. Our suggestion is to dress in a way that you are comfortable with but to dress nicely. If you normally wear a suit to church or to work, then wear that to court. If being dressed up for you is wearing a pair of pants and a long sleeve shirt then wear that to court. You have to use your own judgment and you should certainly talk to whoever is representing you about this, but in general you want to dress in a way that shows that you appreciate and respect the judge and the court system.
Think about this way.
There’s a reason why the judge wears a robe.
It is not because the judge is cold. It is because the robe signifies that this man or woman is now sitting in a very honorable and distinguished position of being a judge. The robe reminds everyone of the seriousness of what is about to happen. You should dress appropriately to communicate the same message that you understand and appreciate where you are, who you are standing before, and the fact that you are going to be testifying under oath.
Conduct Yourself Appropriately
These are basic ideas that all of our mothers taught us.
- Don’t be rude;
- Or sarcastic;
- Don’t make faces or use other expressions that showed your disgust, contempt, or annoyance with anyone or anything in the courtroom;
- Don’t interrupt anyone else in the courtroom — this includes the collection lawyer;
- Do be respectful; and
- Do be polite.
You want to do everything possible to make sure that you are telling the truth and you want to do everything possible to make sure that the judge believes you because you are telling the truth. Not making this mistake of having the wrong courtroom appearance will help your credibility and your believability. We can sum it up by saying be a nice courteous person in the courtroom.
It is rare but some cases are so one-sided that it’s hard for the side with the advantage to lose. And for the side that the case is so one sided against, it is hard to pull out a victory. In this type of unusual situation, perhaps making these mistakes or not making these mistakes may not have a big impact, but it is a fact that most cases are not so one-sided.
In most cases making these mistakes — and of course now that you know about them you will not make them — can prove very costly. The biggest problem is the first item that we discussed in detail which is speculating. If you remember nothing else from this report remember this — do not, under any circumstance, ever speculate. Remembering this fundamental rule will do more than anything else to keep you on the right path of only testifying truthfully.
Of course to testify truthfully you have to hear and understand the question.
If you don’t hear or don’t understand the question and you answer it anyway, then you are just speculating.
After you make sure that you hear and understand the question, it is wise to take a moment to think about the question to make sure that you know what the truthful answer is. You have raised your hand and sworn or affirmed to tell the truth and you will do well to remember this oath on every single question that you answer.
Only answer the question. Don’t explain or justify what you did unless you are asked to do so. If you will train yourself to only answer the question, then you will be a cooperative and credible witness who does not appear to be hiding anything or playing games with the judge.
Speaking of credibility, nothing will destroy your credibility quicker than trying to outsmart the collection lawyer or having the wrong courtroom appearance, particularly when you’re testifying. Sarcasm and looks of disgust and annoyance will naturally annoy a judge just as it will annoy a judge to have to deal with an unprofessional collection lawyer who uses these types of cheap tricks.
Tell the truth. Do not speculate. Be respectful and polite and on time. Do these things and the other items that we or your lawyer will tell you when you meet before the trial for an in-depth consultation. This will help increase your chances of being successful with your testimony in your debt buyer lawsuit.
We wish you the best of success! If you have found this report to be helpful, we would like to hear about how it has been helpful to you.
Please also make sure that we have your full contact information. We want to send our monthly newsletter as well as our e-mail newsletter to you. These will keep you informed about consumer information that will be helpful to you and your family.
Best wishes to you on your successful testimony in your trial.
John G. Watts and Stan Herring
Watts & Herring, LLC
If you have any questions, feel free to get in touch with us.
You can reach us by phone at 1-205-879-2447.
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Thanks for reading and have a great day!