Podcast Transcript: Strategies for Defeating Pro Se Litigants
In Episode 3 of The Debt Collector Podcast, Rossman Kirk attorneys John Rossman and Benjamin Kirk discuss the growing number of consumers representing themselves in court and strategies financial institutions and debt collectors can use when responding to pro se litigation.
Below is the complete transcript of the episode.
Hosts: Angeline Anderson (Host / Office Manager), John Rossman (Attorney), Ben Kirk (Attorney)
Angeline Anderson: Welcome to The Debt Collector, the podcast series focused on improving recoveries and compliance, featuring attorneys John Rossman and Ben Kirk. We promise each episode will have outstanding information and be less than 12 minutes in length.
(Music playing)
Angeline Anderson: I'm Angeline Anderson, your host and office manager at the law firm of Rossman Kirk. Let's get started.
Welcome to The Debt Collector podcast. I'm Angeline Anderson, and today we're discussing a topic that's becoming increasingly common in consumer litigation: how to effectively handle cases involving pro se litigants, or individuals who represent themselves without an attorney. Before we jump in, we'd also like to share a couple of exciting updates from Rossman Kirk. Since our last episode, we welcomed attorneys Jordan Lippert and Seth Berman to our team here at the law firm, which brings our total roster to 11 attorneys.
John Rossman: Thanks, Lena. John Rossman here. Yes, we are really excited with attorney additions since our last episode of The Debt Collector podcast. Jordan is an experienced collection attorney. Been working with him and learning some things from him, and excited for the work that he's doing. Seth Berman is a seasoned attorney with substantial experience as general counsel for a noted debt buyer here in the United States, and we're really lucky to have him on the team and have our clients have access to his knowledge and wisdom. So, welcome both of them to the team.
Angeline Anderson: So John, why has pro se litigation become such an issue for debt collectors today?
John Rossman: Artificial intelligence. I think just a few years ago, there appeared in a lot of people's minds that there was this insurmountable barrier to being able to litigate against—to being able to litigate at all in the courts. And suddenly, within the past 4 or 5 years, a consumer faced with a debt situation can look to artificial intelligence to give them solutions to potentially getting out of debt. At the same time as we've seen a rise in artificial intelligence, we've seen a concurrent rise in what I call "finfluencers," which is financial influencers—people on the internet, TikTok, what have you, who are providing advice to consumers about how to get out of paying their bills. Some of that advice is good, and some of that advice is really bad.
And some of that advice from some of these finfluencers includes encouraging folks to sue debt collectors rather than try to pay their legitimate debts, and might actually encourage some other, you know, activity in terms of fraudulently claiming that an account might be stolen or the result of identity theft or making other claims that may not be true in an attempt to get out of paying a debt. So, really, it's two things: it's artificial intelligence, and it's these finfluencers who have really combined to make this an issue here just within the past few years.
Ben, I know you work a lot with the pro se litigants in our practice. Have you seen any other sources of these cases other than what we're looking at here in terms of finfluencers and the rise of AI?
Ben Kirk: Yeah, thanks John. I think those are definitely the two biggest categories. I think that there's this other element—and it's maybe related to the finfluencers, as you say—where there are online chat groups, Reddit threads, what have you, where people can get online and share ideas and strategies for going after debt collectors as a pro se litigant. I haven't seen this, but I think there's also—there must be some undercurrents of playbooks or something out there that people get ahold of, because I've seen in a few instances these pro se litigants will kind of follow the same pattern as completely unrelated pro se litigants, and it just makes me think that somewhere someone has kind of laid out a strategy for them on how to attack these cases early and get some results, and these people follow those strategies.
John Rossman: Because people believe what's on the internet, so—no, that makes sense. So, the title of this podcast is Strategies for Defeating Pro Se Litigants, but before you want to defeat a pro se litigant, you want to try and resolve the case. Because what the real concern in our industry with the rise in these pro se lawsuits is the cost in defending against them. We're seeing more cases, which naturally is just going to be more expensive to defend. But in some instances, we're seeing pro se litigants utilizing AI to prolong a case, to make a case more complicated, more difficult, which certainly also increases the cost.
So, when we here at Rossman Kirk receive a new matter for a client where they've been sued by a pro se litigant, step one is reach out to that litigant—you know, whether that's by email or, I like to pick up the phone and just call folks and say what's going on. And it amazes me how many times I've picked up the phone to talk to someone who's sued my client and has perhaps a fair amount of vitriol in a complaint or in some other communications, pick up the phone, and all they wanted was to be heard. They just wanted an opportunity to say, "Hey, here's what happened, and here's how I feel that I was wronged."
Not every pro se litigant is looking for a million dollars. Some of them are looking for just to be heard, maybe an opportunity for some relief as far as the debt is concerned, maybe some credit reporting adjustment. But Ben, I think that has to be step one—has to be: you want to reach out to these folks and see if there's that opportunity to resolve the case before you go into a situation where a client could be expending thousands of dollars defending.
Ben Kirk: That's absolutely true. I'd say that's, in my experience, half the cases to maybe slightly more, 60–70%. If you talk to them early, they might not, you know, have no demands—they're going to want something—but like you said, it's a lot more reasonable than maybe what you think it would be, something you can work with. Depends, I think, on what their expectations are, what they've been led to believe that they could get. But a lot of times, if you reach out to them, you're professional, you'll find that these people themselves are professional. They've got jobs, they've got lives, they have a genuine dispute. And as long as they feel like they're getting something, they will be reasonable, too.
And of course, there's the handful who are not so much that way, but it is good to make that contact—especially, like you said, give them a call. I've also found that I think they tend to have a fair amount of respect for attorneys. I think just having the fact that a lawyer is calling them, I've got the sense that they take that seriously and they treat you with respect as well.
John Rossman: And I think on that same vein, when I'm negotiating with a pro se litigant—and I was looking at my list of cases right now, I've got a dozen cases right now where I'm actively communicating with a pro se litigant, whether it's by phone or by email—and I think in looking at each of those cases, in a number of instances, there's been a moment where perhaps a litigant has said to me, "Well, I think this is the product of identity theft”, for instance, the debt at issue, and I've been able to push back a little bit and say, "Well, you know, here are the credit card statements. It looks like, you know, a charge was made at the McDonald's right by your house," or, "You know, there's some other evidence in the file—gosh, we have a credit card or we have an application here that shows your cell phone number and your email address," you know?
Something here, again, you don't want to be a jerk about it, but communicate like a person to them and say, "Look, we hear what you're saying, but here's what my client's saying, you know, and here's the documents and here's the evidence that we have." I always talk about use facts, use logic, and use common sense to negotiate. I mean, these are—these are folks who don't want to spend a whole bunch of time in court either litigating against a debt collector. Lena, I know you were working with us on one case in particular where we had a very interesting demand.
Angeline Anderson: Oh, yeah. It was definitely a lot of information they were trying to hide it in there, but there was somebody asking for their weight in gold as one of the extras in their contract there, so...
John Rossman: We were able to get that case dismissed, and the appeal was dismissed as well. And the fear is that every pro se plaintiff is going to be like that and demanding their weight in gold or demanding some kind of, you know, something that's just out there. And a percentage of them will be that way, but a good percentage of them will not. And it's really a matter of taking that initial step and putting some time and effort into each case to analyze it, and if necessary, reach out and find out what's going on.
Ben, there's another related issue that we've seen when these cases do—if we're not able to settle them early on and we do need to actually litigate. That we've seen really—and talked about it earlier—this rise of internet influencers, but also these non-attorneys who will ghostwrite documents for pro se plaintiffs for a fee. Ben, can you speak to your experience with that particular issue?
Ben Kirk: Absolutely. I think it happens more than we realize. I think it happens in a lot of cases, whether they're getting help from a friend, a child, or a relative. Sometimes we've seen where I think it's somebody maybe who's in law school who's trying to help out. I think it's going on even more than we realize, but there's been a few instances where, often by accident, it comes out in the case where an email is sent from the wrong email address.
We had one case where the finfluencer inadvertently sent to us—copied us on an email to a different customer, and sent us their PowerPoint or video playbook for how they go after debt collectors and strategies to do it. Then it turns out in that case, that particular finfluencer was falsely representing themselves to be the pro se litigant, and we ended up getting to disclose that to the arbitrator and got that case dismissed.
John Rossman: I want to focus on that fact for a second, because it was astounding to me that there was this third-party non-attorney who was appearing at an arbitration claiming to be the consumer when we knew for a fact that it was not the consumer. And when the arbitrator asked that party to turn on their camera, they said the camera on their phone was broken.
Ben Kirk: Well, and what was really interesting in that case, in that particular finfluencer—in their PowerPoint or video or whatever it was, this tutorial on how to do this—they actually called out the fact that in arbitration, in this particular administrative body—but I think this is probably the case with most I've encountered—that the conferences are handled by phone, not by virtual means. And so, there is generally no requirement to appear on camera, unlike, of course, the courts.
And so, there was a point they were saying you can take advantage of as a pro se litigant, in that you can get assistance because nobody's going to know who you really are because it's just your voice. And part of the reason we actually got lucky in that case is that arbitrator was a bit of an anomaly who wanted to do things by Zoom or Teams or whatever it was with cameras. And so that brought this up in a way that it maybe wouldn't have in a lot of other cases where everything is just done over the phone.
John Rossman: And I think it's a difficult allegation to make. I mean, for a collection agency to go into litigation and say, "Hey, the other side, this person who's claiming to be a pro se plaintiff, is actually being represented by this ghostwriter," you need to make sure that you have your ducks in a row before you make that allegation. And I know there's several ways you can get that: you can certainly make inquiries directly with the consumer and say, "Is someone helping you here?" You could also serve discovery. And I know we have specific discovery requests focused on this issue and whether or not the consumer is getting assistance from a non-attorney.
Ben Kirk: And I will note in that case, we did that. And even with the overwhelming evidence we have, that finfluencer never did technically come clean. They actually just stopped appearing and stopped responding after multiple times. But that's, you know, another strategy. Really, if you are in a situation where you have an arbitration body and arbitrator who's doing things by phone, is to suggest, or maybe demand, "Look, I don't believe this person is who they say they are. Let's get on camera," and actually make that as an affirmative request.
John Rossman: No, absolutely. That makes sense. The final point—this is supposed to be strategies for defeating pro se litigants—certainly if all these other strategies fail, you're looking at motion practice and some other things. And Ben, I did run a list—I asked AI, a legal AI, "What are the best strategies to defeat a pro se litigant?" So Ben, you do this a lot, I want to go through the list that the law AI came up with and get your opinion on them. The first strategy that AI suggested was standing and jurisdictional challenges.
Ben Kirk: Yeah, that one is tricky. I think there was a short period of time where that was really effective because you could get cases out of the federal courts for lack of a concrete injury and not meeting that pleading standard. But we see now where some courts say, "Okay, fine, you don't meet that standard, you can either amend or we're going to kick you down to the state courts." And, you know, a lot of times we don't want to be back in those state courts, or at least it's not going to get the result you thought it would if you removed a federal court, you might end up back in state court. So, you've got to be careful with that one.
John Rossman: No, I agree. And certainly we've won cases in state courts just in the past year. I know I was in Milwaukee County arguing a case that we won that normally would have been handled in the federal court, but because of the pleadings, what was in state court—and that's fine, we won in state court. So, good.
A couple of other recommendations from AI were early motion practice, and specifically a motion to dismiss.
Ben Kirk: We were talking a little bit about that before. Surprisingly, I haven't seen a lot of these pro se cases that have some of those procedural or really substantive defects where you can get an early motion. Of course, you know, it does happen, and when we see it, that's a great strategy, as it would be with anybody. But I assume it's just with the rise of AI, some of these complaints and the allegations are actually pretty good.
John Rossman: Agreed.
Ben Kirk: And these pro se litigants are a little bit better than you might think at writing a complaint that's at least motion-to-dismiss-proof.
John Rossman: Which refers us back to point one, which is why you should try and settle before you litigate! Statute of limitations, but here again, folks know that. There's some procedural strategies that AI recommended before we wrap it up here. One was removal, if the pro se plaintiff did file in state court or small claims, a removal to federal court or possibly even some type of arbitration, motion to compel arbitration or stay the case while arbitration moves forward.
Ben Kirk: I think that can be an effective strategy to, if nothing else, knock them off balance. I think these pro se litigants, they come in with an idea, a strategy in their mind of how they're going to play this case out, and there's a reason why they've chosen the forum that they're in. And I think if you can move the forum to a place they're not expecting, you may gain a tactical advantage in doing that. But sometimes, as we've seen, it could backfire if you're not prepared for what might happen, like a state court removal to a federal court removal where, if your idea was "they don't have a concrete injury, you think you're going to move it to federal court to argue that," you're just going to end up back in state court more likely than not. And so, you've got to be careful with that and know yourself, you know, what's the end game here and is it efficient?
John Rossman: Right. And finally, Ben, I want to talk about the arc of patience of a judge with a pro se litigant, because I think that plays heavily into strategy. I think early on in a case, whether it's federal court, state court, arbitration, small claims—I don't care—I think early on, a trier of fact is going to tend to favor that pro se litigant. I mean, unless they've filed some patently ridiculous complaint, which we've seen, but unless they've filed something where they're looking for their weight in gold as damages, I think a judge is going to give them the benefit of the doubt.
And Ben, I know you had one case where early on—we've seen this in several cases—the judge early on will order a mediation, you know, everyone attends in person, hugely expensive. But after that first period of time, it seems like the attitudes of the courts can change and can actually favor us. What have you seen kind of how that arc works?
Ben Kirk: Yeah, that's definitely an interesting hallmark of these pro se cases. And I've seen that my entire legal career. When you get a pro se litigant in across any type of practice area, the courts—I think every lawyer knows that—treats them with kid gloves and is extra nice to them. And I think that's just deeply ingrained in our legal profession and goes back quite a ways.
But with the rise of AI and just the ability of these pro se litigants to be very prolific and to think they know a lot more than they do and so to bring motions or to bring arguments to the court that they think have a lot of merit, has caused them to reach out to the courts a lot more. And in our experience, it's a good piece of advice is be careful not to try to win every battle that they want to drag you into. Obviously, you have to respond, and you have to go along with them. But know that the courts—as annoyed as you are at having to deal with every little tit for tat item that they want to talk about—the courts are also going to be annoyed with it. And eventually, that will come through. Not in the beginning; the courts will be nice to them. But we have seen that where the courts grow tired of them, they see who we're dealing with, they understand that they need to give them a shorter leash, and you will see them start to tighten up on these pro se litigants.
John Rossman: I was looking at a case that you and I discussed before earlier today, where you mentioned that the judge had really changed their view of the case after, you know, ordering mediation early. In fact, I think the judge had perhaps asked the plaintiff even to be less vociferous during a conference. But I also noticed that there was an order that the court issued saying, "If this pro se plaintiff would like legal help, here's, you know, the free legal clinic—local free legal clinic." So, it feels like these courts do want to help, you know, even after this plaintiff, you know, had done whatever, and the case had gone as far as it had gone. So, I do see this ongoing attempt to help these pro se litigants, but in some cases, they don't want it. They would just rather litigate and rather see how far they can push a case, which, unfortunately—yeah, there's some percentage of the cases where it's like you're going to fight through every motion, you're going to fight through maybe a court of appeal before you're finally going to shake the case.
Ben Kirk: That's right. I think sometimes you just have to fight, and in the vast majority of the cases, the pro se litigants, they grow weary of it and will settle or give up. But some just won't. And I think there's a growing number of those who won't because of AI, as you mentioned, is helping them a lot. Something I'm expecting to see some point in the near future, maybe 5 to 10 years, is the courts addressing this issue head-on. I think this is going to become an increasing problem for them. So, it'll be interesting to see how even the courts try to deal with this going forward.
John Rossman: We are out of time for today. Ben, thank you for an excellent episode. Lena, thank you for—for the assists there. I'll hand it off to you.
Angeline Anderson: Thank you, John and Ben, for sharing your insights, and thank you to everyone listening to The Debt Collector podcast. We will see you next time.
(Outro music playing)
Angeline Anderson: Thank you for joining us on The Debt Collector. We hope today's Q&A gave you clarity and practical insights into navigating debt collection challenges. Be sure to follow us on LinkedIn and subscribe so you don't miss the next episode. Until then, I'm Angeline Anderson, and we'll see you next time.
The information provided on The Debt Collector is for general information purposes only and is not intended as, nor should it be considered, legal advice. Listening to this podcast does not create an attorney-client relationship between you and Rossman Kirk, PLLC or any of its attorneys. Because laws vary by jurisdiction and are subject to change, the information discussed may not apply to your specific situation. For advice regarding your individual circumstances, please consult a qualified attorney licensed in your state. Rossman Kirk, PLLC expressly disclaims all liability for any actions taken or not taken based on the content of this podcast.
Comments