Last week, we wrote about the challenges that arise when a plaintiff changes legal representation. As we alluded to in that article, every so often a plaintiff will complicate matters even further by making the choice to appear pro se, i.e. representing themselves in their claim!
This article will explain the background of why a plaintiff might represent themselves, pain points during that process and best practice considerations for how your company can protect your investments.
It is unheard of for personal injury funder to fund pro se plaintiffs. They only fund plaintiffs represented by counsel.
Why is that?
1. Legal Expertise. Funders don't trust a plaintiff to handle a legal case themselves. A lone plaintiff almost assuredly lacks the legal knowledge to adequately prove her legal claim, and it isn't easy to properly draft court documents, follow extremely strict court deadlines and understand idiosyncrasies between courts and judges.
Attorneys, on the other hand, are trained and educated to handle all of this. They are licensed by the state, by definition, and can (usually) be trusted as fiduciaries of the plaintiff. Which brings us to the second point...
2. Disbursement. Attorneys are the ones responsible for paying a funder before a plaintiff gets paid. You can rely on them more readily to pay you before paying the plaintiff. It is also comforting knowing that there is recourse, such as disbarment, in the rare situation where an attorney messes around, steals money and/or runs off. It's a great safeguard for funders.
3. Easier to track down. Funders also like that law firms have brick and mortar businesses, are certified by the state and presumably can be tracked down more easily. No one wants to chase down unrepresented plaintiffs to try and recoup their money; it's very risky and extremely inefficient.
4. Offers a consumer protection. Funding a plaintiff with an attorney, who both reviews the contract and promises to comply with it, is an incredible and rare consumer protection. This is valuable for funders both from a policymaking perspective and because it helps ensure transparency and accuracy with your contracts.
5. Signal. Having an attorney is also a signal to a funder that the case is good enough for a the attorney to invest their time and resources in. It's not foolproof, and funders must do their own due diligence, but knowing a reputable attorney is putting their time, money (e.g. out of pocket legal expenses) and reputation on the line can be a good leading indicator.
You have probably heard a variation of this apt expression: "He who represents himself has a fool for a client" (supposedly attributable to Abraham Lincoln). For better or worse, there is a lot of truth to it. So why would a plaintiff decide to represent themselves?
It often happens deep into the litigation process, especially near resolution of the claim. This tends to happen after a plaintiff refuses to agree to what their attorney believes is a reasonable settlement offer and the plaintiff thinks she can do better herself.
Most often, a plaintiff thinks she will get more money based on the fevered dream that she won't have to pay the attorney's contingency fee upon settlement. What plaintiffs don't fully appreciate is that the attorney is usually entitled to part or all of their fee anyway, depending on how far along the attorney has taken the case.
It's not always the plaintiff, however, who initiates. Attorneys will often choose to drop a client for a variety of reasons. If you learn an attorney has dropped a plaintiff, this should set off alarm bells in your head.
It might be due to legal developments in the case, such as a damning deposition or issues of questionable liability. Or it may be due to fraud, where the attorney finds out a plaintiff made up facts about a case.
Sometimes it's just a personal issue where a plaintiff is just too difficult to work with, and the attorney decides they can't afford to allocate more time and resources to them. In other cases it just becomes clear that the case would be too expensive to fully litigate, such as when expert witnesses must be hired, and it's clear a potential settlement wouldn't be enough to recoup costs.
It can be surprisingly difficult to even find out that a plaintiff has decided to drop their attorney. Properly gathering contact information, drafting a good contract, case tracking and staying in touch with plaintiffs are a few of the keys to finding out sooner rather than later.
Last week's article gets to the heart of some of these methods, and certain elements bear repeating. You need to have the following in place before funding:
A solid, well-written contract
1. Confidence that the initial attorney who signed your agreement knows how funding works and understands their responsibilities to alert you for changes in representation (which partly ties into the contract!)
2. A great system in place for collecting plaintiff contact information, and keeping it up to date, for every plaintiff you fund. This is especially true for cases that are not yet publicly filed and trackable in the court system.
3. Ideally, a plaintiff or attorney will contact you to inform you directly. They would in fact be obligated to do so per the funding contract, but we all know that the parties to the contract don't always respect its tenets. In practice, you will usually find out from the attorney. Attorneys want to work with you to make sure they aren't going to get taken advantage of on the deal either.
The sooner you know, the better. To get ahead of these issues, it may even be smart to check in with plaintiffs to gather information about their case's status and current counsel for fundings that are: (i) high value (ii) not trackable in court systems, and (iii) represented by attorneys you don't know well.
The first step is to contact the plaintiff. Ask why they decided to go represent themselves and try to uncover as much information as you can: ask how they are pursuing the claim, what they expect regarding timelines and potential payout, etc. You are basically trying to gauge if there is any hope of a successful outcome for this pro se plaintiff and whether they intend to pay you.
There is a social dynamic to watch out for here, too. When speaking to the plaintiff, consider how amenable or hostile they are to your inquiries. You can gain insight, based on how a plaintiff reacts, on whether they understand their obligations and and want to honor the lien. Your next steps may be different depending on how difficult the plaintiff is.
Some plaintiffs who plan on representing themselves eventually find out it's a much harder road than they thought, and eventually decide to seek out and get new representation. Per the previous section, try to plan ahead and let the plaintiffs know they must tell you of any such changes in representation.
While not ideal, some funding companies will file a lawsuit against the plaintiff for "anticipatory breach" when they are dealing with a difficult client (with a valuable contract) and can foresee a collection issue on the horizon. The company will usually seek an arbitration directly against the plaintiff once it becomes clear the plaintiff plans to settle and take the money without clearing their funding liens.
You will also want to contact the pro se plaintiff's old attorney or firm. If the plaintiff dropped them, however, they may not want to talk to you! They may feel like they've already spent a lot of time on the case, which ended up as a wasted effort.
Attorneys are probably more likely to help you out if they dropped the plaintiff. Take this opportunity to learn why the attorney is no longer representing the client. As we discussed earlier, their reasoning could affect your business decisions and allow you to more quickly decide whether to actively pursue an investment or write it off as a loss and move on.
In addition to dealing directly with their pro se plaintiffs, some companies will take steps to work with defendant insurance companies to try and resolve their lien. Some funders, as part of their standard practice, will immediately take the following course of action upon learning a plaintiff has decided to drop her attorney:
1. They will file a "UCC" against the plaintiff. What is a UCC? Under the Uniform Commercial Code, a set of laws governing commercial dealings and transactions, you can file a UCC-1 financing statement to essentially give public notice that you (as a creditor) have a security interest in property of the plaintiff (as a debtor).
It helps establish your relative priority with other creditors of the debtor, too. Each state has slightly different filing requirements (see New York's, for example), so be sure to investigate your state's rules prior to filing.
2. Some companies will then contact the insurance company to put them on notice of their lien. Ideally you would send the company a copy of the executed contract and the UCC filing. Be careful: some plaintiffs and plaintiff attorneys may view this as an aggressive action.
Many believe getting financing entitled them to confidentiality and feel you are interfering by injecting yourself into the proceedings and putting their legal case at risk. This is an issue you should discuss with your legal counsel.
Hopefully the insurance company will work with you once they are on notice. Depending on the insurance company, you may be able to arrange to be paid directly. Stay on top this process to know when the settlement occurs and for how much — otherwise, you may find a plaintiff with a check in hand (that you haven't seen) will try to negotiate your recoupment down.
If a plaintiff has already resolved their claim by the time you get ahold of them, you now have to collect your money. It probably won't surprise you to learn that they often don't want to pay you and sometimes claim they've already spent all the proceeds. This is a difficult topic for a future post (hopefully one you won't ever have to read!).
Pro se plaintiffs can create a headache for your business and add unwelcome challenges to administering and collecting on your investments, but it's certainly not a lost cause. The tips in this article will help you tackle these challenging issues.
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