Everyone who regularly works on consumer finance litigation has noticed the dramatic uptick of cases brought by individuals representing themselves, known as pro se plaintiffs. Some of these are attorneys choosing to handle their own cases, but most are lay persons who either cannot afford, do not want to pay for, or cannot find an attorney to represent them. The difficulties in the economy are certainly responsible for a general increase in consumer finance litigation. The economy also likely caused the increase in the percentage of cases wherein plaintiffs are representing themselves, because more people are in financial circumstances that prevent them from retaining counsel for a fee, and the attorneys specializing in representing consumer finance plaintiffs are able to be more selective and must turn people away because there are too many prospective clients. Another obvious cause of the growth in self-representation in consumer finance litigation is the availability of forms (of varying quality) on the Internet that people can use to draft pleadings for their own cases. Some forms are designed to assert frivolous claims such as the “prove I owe you” claims, but others are truly intended to assist the pro se litigant that has a legitimate gripe.
When a new pro se case comes in the door, it is sometimes possible to discern immediately from the initial pleading that it is merely a frivolous case based on a bad form, but more often it is unclear until the account/loan documents are reviewed or after that ever-important first conversation with the plaintiff. Self-represented plaintiffs are sometimes unwilling to talk to opposing counsel out of intimidation and need to be coaxed into it by (true) assertions that we simply want to hear their story and learn what they believe they are entitled to receive as relief in the case. Sometimes the answer is the moon and the stars, and it is possible to discern that this one must be fought in the court. Other times, the plaintiff wants something simple, like a change in how his or her account is being reported to the credit bureaus or a small credit to the account on a legitimate basis. Often this cannot be discerned from the plaintiff’s court filing because the filing is not expressed as well in writing. Occasionally, the plaintiff has a truly legitimate and significant basis for a claim, which if it had been handled by experienced consumer finance counsel could have cost the defendant lender a great deal of money, but a proper and legitimate settlement is possible at a much lower level and without the need to incur substantial attorneys fees because the individual is not well represented.
More so than in cases with represented plaintiffs, it is that first phone call in the context of a self-represented plaintiff that sets the tone. It is crucial that the person making that call must have familiarity with the history of the account and cause the plaintiff to trust them. The caller must listen carefully to the plaintiff’s description of the dispute, respond in a measured way, and cause the plaintiff to understand that the lender will do what is fair, but nothing more. Whatever questions are raised in the initial call need to be answered quickly and the plaintiff needs to be apprised of the position of the lender. Often the litigation is born of individuals experiencing a “run-around” on telephone systems and call centers. They need to know that someone is now paying attention and will address their legitimate concerns, but will recognize the frivolous issues they raise and reject them. As mentioned above, some cases just have to be fought, but like any other case, there is an opportunity with self-represented plaintiffs to reach a quick and reasonable solution, if care is taken in how that first call is made.