Answering Civil Complaints in a Workshop Setting Eric Nakano Voluntary Legal Services Program of Northern California

Why have a workshop? Approximately 90% of customers are involved in a debt collection/breach of contract case. Approximately 90% of customers are involved in a debt collection/breach of contract case. Answers to these cases are relatively simple, making a workshop appropriate. Answers to these cases are relatively simple, making a workshop appropriate. Individually, an Answer takes about one hour, including a Fee Waiver and Proof of Service. Individually, an Answer takes about one hour, including a Fee Waiver and Proof of Service. Most Answer- Contract workshops take between two to three hours, depending on the participants. Most Answer- Contract workshops take between two to three hours, depending on the participants.

Workshop Steps Triage Triage Overview of Process Overview of Process Completion of Forms Completion of Forms Review of Forms Review of Forms Proof of Service/Conforming Proof of Service/Conforming

Triage- Goals Identify appropriate cases for the workshop. Identify appropriate cases for the workshop. Identify appropriate customers for the workshop. Identify appropriate customers for the workshop. Provide initial information and instructions prior to the workshop. Provide initial information and instructions prior to the workshop.

Identifying Appropriate Cases Well-plead complaints using the Judicial Council Complaint- Contract, form with attached causes of action for breach of contract, common counts, and/or fraud. Well-plead complaints using the Judicial Council Complaint- Contract, form with attached causes of action for breach of contract, common counts, and/or fraud. Well-plead complaints on pleading paper with causes of action for breach of contract, one or more of the common counts, and/or fraud. Well-plead complaints on pleading paper with causes of action for breach of contract, one or more of the common counts, and/or fraud.

Inappropriate Cases Complaints using the Complaint- Personal Injury, Property Damage, Wrongful Death form. Complaints using the Complaint- Personal Injury, Property Damage, Wrongful Death form. Complaints arising from tort, any other non-contract case, as well as unusually complicated cases. Complaints arising from tort, any other non-contract case, as well as unusually complicated cases. Improperly plead pleading, in crayon, etc. Improperly plead pleading, in crayon, etc.

Inappropriate Customers The workshop works best in only one language at a time. Different languages should be assisted in alternate workshops or individually. The workshop works best in only one language at a time. Different languages should be assisted in alternate workshops or individually. Corporations, LLC’s, Partnerships, and other entities cannot file In Pro Per. Corporations, LLC’s, Partnerships, and other entities cannot file In Pro Per. Persons who cannot perform simple writing/typing, or follow moderately detailed instructions in a workshop setting. Persons who cannot perform simple writing/typing, or follow moderately detailed instructions in a workshop setting.

Is the Complaint Verified? Is there a verification after the end of the Complaint? (Statement declaring that the allegations in the Complaint are true under penalty of perjury) Is there a verification after the end of the Complaint? (Statement declaring that the allegations in the Complaint are true under penalty of perjury) This is different from a CCP §395 Declaration of Venue. This is different from a CCP §395 Declaration of Venue. If verified, the customer should mark each paragraph in the Complaint as True/False/Unsure (T/F/?) while waiting. If verified, the customer should mark each paragraph in the Complaint as True/False/Unsure (T/F/?) while waiting.

Overview of Process A Lawsuit is like a Football Game. A Lawsuit is like a Football Game. At the end of the workshop and filing, the customer will finish the steps in the second box from the top. At the end of the workshop and filing, the customer will finish the steps in the second box from the top. The first decision will be whether to file an Answer. The first decision will be whether to file an Answer.

The First Difficult Choice: Whether to Answer Consequences of Doing Nothing- Default and Judgment Consequences of Doing Nothing- Default and Judgment Consequences of Answering- Consequences of Answering- Defendant commits to participate in the case Defendant commits to participate in the case Costs and attorney fees likely to increase. Costs and attorney fees likely to increase. Interest at contract rate alleged potentially accrues longer until judgment. Interest at contract rate alleged potentially accrues longer until judgment. Case remains open longer, and parties may use discovery process. Case remains open longer, and parties may use discovery process.

The Answer- Contract Form The Caption- The Caption- Useful to have customers looking at the Complaint when they fill this out. If they are looking at the Summons, the Plaintiff and Defendant tend to get reversed. Useful to have customers looking at the Complaint when they fill this out. If they are looking at the Summons, the Plaintiff and Defendant tend to get reversed.

General Denials If the Complaint is not verified (or is under $1,000) general denial can be used. If the Complaint is not verified (or is under $1,000) general denial can be used. Some customers panic when they read the general denial language if it’s not explained during the workshop. Some customers panic when they read the general denial language if it’s not explained during the workshop.

Specific Denials If Complaint is verified, specific denials will be required. If Complaint is verified, specific denials will be required. Denials are listed by paragraph. Denials are listed by paragraph. Anticipate specific questions about the Complaint language. Anticipate specific questions about the Complaint language.

To Speed Things Up… Have your forms pre-check paragraph 4, and the “Continued on Attachment 4” checkbox. Have your forms pre-check paragraph 4, and the “Continued on Attachment 4” checkbox. Briefly explain that the boxes are used for defenses, and that you will write these on the following pages, but continue to the bottom for the prayer for relief and signature. Briefly explain that the boxes are used for defenses, and that you will write these on the following pages, but continue to the bottom for the prayer for relief and signature.

Affirmative Defenses Defenses not raised in the Answer are waived. Defenses not raised in the Answer are waived. Burden is on the Defendant to prove affirmative defenses. Burden is on the Defendant to prove affirmative defenses. The Santa Clara Superior Court Self- Service Center developed a checkbox affirmative defense list, which we have very slightly modified and used. The Santa Clara Superior Court Self- Service Center developed a checkbox affirmative defense list, which we have very slightly modified and used.

Known Weaknesses of Checkbox Affirmative Defenses Affirmative defenses must be plead with specificity, just like the Complaint. Affirmative defenses must be plead with specificity, just like the Complaint. The checkbox form is therefore open to demurrer to the Answer. The checkbox form is therefore open to demurrer to the Answer. This weakness rarely exploited (so far, never, at our center), in large part because the time to demurrer is short, and the remedy unsatisfactory. This weakness rarely exploited (so far, never, at our center), in large part because the time to demurrer is short, and the remedy unsatisfactory.

Explaining Affirmative Defenses Checkbox forms do a good job, but examples as to each of the defenses are important for customer understanding: Distinction between total and partial defenses. Inability to pay is not a defense. Anticipate additional questions by customers to clarify each defense.

Helping to Identify Additional Affirmative Defenses “Other than the defenses that we just talked about, can you think of any other reason why the Court shouldn’t enter a judgment saying that you owe what the Plaintiff says you owe?” “Other than the defenses that we just talked about, can you think of any other reason why the Court shouldn’t enter a judgment saying that you owe what the Plaintiff says you owe?” Typically, there aren’t any, however this question may elicit facts that can be re- stated to the person to allow them to identify one of the previous affirmative defenses. Occasionally, an additional affirmative defense is described. Typically, there aren’t any, however this question may elicit facts that can be re- stated to the person to allow them to identify one of the previous affirmative defenses. Occasionally, an additional affirmative defense is described.

Most Common Affirmative Defenses We See Running of the Statute of Limitations and/or Laches Running of the Statute of Limitations and/or Laches Lack of Privity Lack of Privity Unjust Enrichment Unjust Enrichment Failure to Mitigate Damages Failure to Mitigate Damages Quantum Meruit Quantum Meruit

Form Review Add verification if Complaint is verified. Add verification if Complaint is verified. Be sure the Plaintiff and response to is to the Plaintiff, not the law firm. Be sure the Plaintiff and response to is to the Plaintiff, not the law firm. Check that the case number is correct. Check that the case number is correct. Check that the person answering is a party to the lawsuit. Corporations, LLC’s, Partnerships, and other entities cannot file In Pro Per Check that the person answering is a party to the lawsuit. Corporations, LLC’s, Partnerships, and other entities cannot file In Pro Per

Completion of Workshop Talk briefly about discovery. Talk briefly about discovery. Show and discuss any additional handouts. Show and discuss any additional handouts. Describe the Court’s filing procedure. Describe the Court’s filing procedure.

Service and Duplication Providing Proof of Service by mail, and duplication and conforming copies for filing is recommended. Providing Proof of Service by mail, and duplication and conforming copies for filing is recommended. When this service was not provided, few self-represented litigants were able to serve and file on the first attempt. When this service was not provided, few self-represented litigants were able to serve and file on the first attempt. Each court varies slightly on its filing procedure. Each court varies slightly on its filing procedure.