Connell Loftus

The respected newsman David Brinkley once said: “A successful man is one who can lay a firm foundation with the bricks others have thrown at him.”  These days many “bricks” are thrown at collection attorneys.  Success in today’s highly charged and highly regulated legal collection environment requires us to build a strong foundation in our practice, with our clients, and, most importantly, with the courts.  This aspiration is particularly important while engaging in a high volume practice.

The high volume environment presents many challenges.  There are, inevitably, many default judgments, dismissals, evidentiary challenges and many trials.  All of these Court appearances and filings create opportunities for bricks to be thrown at collection counsel.

We’ve all seen, hopefully not first-hand, the wrath of a judge in response to an unprepared attorney and read the negative press coverage of our industry and our clients.  Those incidents and that press coverage do not escape the judiciary’s attention.  However, every collection case that reaches the attention of a judge is an opportunity to educate the court, and to use those bricks to demonstrate your competence and build your strong foundation of success.

For 17 years, I have represented creditors in multiple jurisdictions.  Again and again I have found that the judiciary is willing to listen and consider the arguments, motions and evidence of my clients.  However, the courts do not and should not be taken for granted.  High volume filers present the judiciary with thousands of collection cases to oversee.  Those voluminous filings are accompanied by recurring phenomena, including large numbers of dismissals, many collection counsel appearing unprepared for discovery and/or trial, and large numbers of default judgments.

To those of us in the collection industry, those phenomena, good and bad, are understandable and even expected to some degree.  But to the judiciary, the high volume business model is often viewed with great skepticism.  A skeptical audience is a challenge, but it is also an opportunity – an opportunity to demonstrate competence and talent.  Confronted with competent and talented collection counsel, the skeptical judge inevitably becomes receptive to our arguments and evidence.

As collection counsel, it is necessary to understand the challenges faced by each client and to react accordingly. Many clients are adept at providing documentation and witnesses quickly.  Others struggle in that regard.  However, attorneys are obligated to zealously represent and, moreover, we are bound ethically to the court and our profession.

For example, if a creditor requires additional time to provide underlying documentation and that time is outside the discovery parameters, it is essential that counsel proactively communicate that client’s issues to the court in an appropriate motion or filing.  Do not wait.  You may lose the motion, but in the vast majority of cases, you build credibility – personal credibility and client credibility.  Similarly, if additionally documents are retrieved during the course of litigation, consider turning said documents over to the opposition voluntarily.  Again, credibility constructed one brick at a time.

On the other hand, a client may inform you that they do not wish to go forward with a contested trial.  That could be for many reasons: travel restraints, conflicting court engagements and/or other cost benefit concerns.  The client’s decision does not relieve the collection lawyer of the role as an advocate before the court.  Consult with your client.  Inform your client that its future credibility before that tribunal is at stake.  After gaining your client’s approval, consider a motion for dismissal without prejudice and provide the court with the reasons for the dismissal – take the extra step to appear before the judge.

I can recall a conversation with a prominent judge who has been very tough on collection counsel.  The judge told me flatly, “If it is too expensive for the client to come to our court, tell me.  I understand cost benefit concerns.”   The problem is the impression left by a dismissal without any explanation or hearing.

Finally, large numbers of default judgments are a fact of life in legal collections.  Very few defenses exist for the vast majority of defendants.  Those defenses that do exist — statutes of limitations or frauds, or accords and satisfaction — are technical.  I have often been surprised at the righteous indignation offered by the consumer bar with respect to technicalities.  Nevertheless, our clients’ credibility is at stake.  Therefore, I would recommend that counsel seriously review claims to set aside default judgments.  If the claim is credible and counsel determines that a vacation of the judgment is warranted, explain what you and your client have agreed to do to the court.  Bring a motion to the court.  Don’t wait for the other side to bring the motion if you can avoid it.  Demonstrate that you and your client are professional, and the court may even pat you on the back.

Failing to follow such common sense suggestions, could lead to a “storm of bricks” coming in your direction.  On the other hand, investing in a little professionalism today will return big dividends tomorrow; dividends that will enhance the reputation of your firm and your clients and build a foundation of credibility one “brick” at a time.

Connell A. Loftus is a collections attorney and consultant.  The foregoing is not intended as legal advice, but is provided only as a general discussion of tactics and ideas.  Connell lives in Fairfax City, Virginia and can be reached at (703) 362-5783 or by email.


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