In a prior post I advised readers on how to craft a legal threat letter; http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html. This post is the opposite of that: how to respond to a threat of legal action (whether in writing or verbal). There are a number of possibilities, so let’s take them one by one.
1. Keep Calm. Yes, the threat of legal action is scary, but your response should be the result of clear thinking, and you can’t do that if you’re in panic mode. You need time to consider your options, so if the threat is oral (over the phone or in person) work to get some breathing room. First make sure you understand the nature of the threat: who is making it (get names and contact information), what the circumstances are giving rise to the claim, what legal theory is being threatened, and what are the time constraints for your response? Don’t spout off. A calm, mannered answer, delaying your formal response, will work better than a rant. If the person says you must respond “NOW!” reply that you will think about the issue, talk to your lawyer (don’t admit you don’t have one), and get back to him/her. Then walk away or disconnect the phone caller.
2. Debt Collection. If the legal claim is that you owe a debt, first of all ask yourself if it’s true that the debt is owed and in the amount stated. If not, dispute that. If so, can you figure a way to pay it? In any event, you can stop debt collection harassment by invoking the protection of a federal statute: The Fair Debt Collection Practices Act (15 United States Code section 1601 and the sections that follow), the text of which can be found at http://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text, and the Federal Trade Commission’s explanation of the Act is at https://www.consumer.ftc.gov/articles/0149-debt-collection. In the statute you have the right to stop the debt collector’s future contacts by giving the debt collector a notice in writing (keep a copy) in which you demand that further contact with you cease, and the collector must then stop contacting you except for the purpose of initiating legal actions (such as filing a lawsuit). Even without such a written notice from you, the debt collector cannot harass you (and the statute has examples of what sorts of conduct are forbidden as harassment). Violations of the Fair Debt Collection Practices Act give you a legal cause of action against the debt collector for your actual damages plus attorneys fees and punitive damages (up to $1000.00) for outrageous behavior.
If you can’t pay the debt, tell the creditor that you don’t have any money (the legal term is that you are “judgment proof” or as the old saying goes “you can’t get blood out of turnip”). If you have the possibility of paying some of the debt, offer to pay a lesser sum as satisfaction for the whole, mentioning that if you can’t work something out you may have no other choice but to file a bankruptcy petition. If the creditor agrees to take a lesser sum, send him/her a payment in full check [see Related Posts below]. Without the creditor’s express agreement, a payment in full check will not work.
3. Are You Guilty? We all justify our actions to ourselves and are very good at coming up with arguments as to why we’re right. Once these conclusions are fixed in our minds it’s very, very difficult to rethink them. But when the legal threat arrives it’s time for some soul-searching. Ask yourself how some objective person, say, a judge, is going to view this matter. Here is a sobering challenge: put yourself in the position of the other side. What does this all look like from that point of view? If this mess ends up in court what ugly facts will come out that’ll be very damaging to your version of the matter?
What are the equities of the situation? What’s fair and what’s not fair? Understanding the equities is important. I tell my law students that if you are filing a law suit and you’ve got the rules of law on your side are while the equities are all on the other, you’re in trouble. Courts tend to do what’s equitable, and they can adjust the law as needed to reach that result if they’ve a mind to do so.
What should you do if the other side is right? You really do owe the debt. You did cause the accident. Your dog did eat their favorite child. You certainly want to avoid a lawsuit if you possibly can because even if you win the whole experience will be a real ordeal, and if you lose life could become a nightmare.
Apologize! An apology, sincerely given, can work wonders. If you’re guilty, it’s time to propose a settlement. Sit down, work things out—be the most reasonable person on the planet. People are often surprised and impressed by a sincere apology.
If the other side won’t settle, consider the possibility of filing a bankruptcy petition, which automatically stops all creditor collection activity and lets the bankruptcy court straighten things out. Threatening bankruptcy can make many creditors more compliant. The forms should be filed in the Federal District Court Bankruptcy Division nearest you. You’ll need a bankruptcy lawyer, and it is usually easy to find one who can figure out some sort of fee payment plan. Ask around among people who have gone bankrupt if they had a good experience with their attorney. The court itself might be a source of information about which lawyers are experts at handling bankruptcy petitions, and the bar association will have such a list.
4. Violations of other laws. I’ve written elsewhere [see Related Posts below] about fraud, federal or state consumer protection statutes that might be relevant and help you find the relevant defense. Type “consumer protection” along with your state’s name into Google and see what comes up.
5. Get a lawyer. You wouldn’t perform your own medical operation if you were injured, you’d pay a doctor. If you have legal trouble, it’s time to bite the bullet and pay a good lawyer. How do you find one? Friends might have a recommendation, but make sure you get an expert in the particular field of law at issue. Contact the local bar association, which typically has a list of lawyers in various fields who are willing to take on new clients. The first thing to ask the lawyer is what he/she will charge. Without know this, it’s impossible to decide whether to proceed. Don’t be shy in asking about the fee upfront. If you can’t afford a lawyer, call the legal aid society. Use Google to find a legal aid office near you, and then see if your plight will attract their attention. Or perhaps you have a lawyer friend who could help you pro bono.
6. Dig In Your Heels. If you’re sure that you are in the right (don’t make a mistake as to this), but the other side is being unreasonable in pursuing a groundless claim, tell them you have no more to say. See if they are willing to go to court to press an unwinnable case. Many people, faced with a flat refusal, will fume and curse you but ultimately give up. If they don’t, well then a court will have to figure out who’s right and who’s wrong. But doing nothing can be a powerful tactic if the other side doesn’t have the will to proceed.
"I Threaten To Sure Apple Over an iPad Cover," April 8, 201l;
"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011;
"What Non-Lawyers Should Know About Warranties," October 11, 2011;
"How To Write an Effective Legal Threat Letter," October 19, 2011; http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html
“How To Win Arguments and Change Someone’s Mind,” August 5, 2012;
"Legal Terms You Should Know," September 11, 2013;
“Clicking on 'I Agree': Sticking Your Head in the Lion's Mouth?” September 27, 2014;
“My Battle with Sony To Get a Refund on a DVD Player”;
“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html.