Settlement negotiations confidentiality

cjtx · 07-08-2008, 08:10 PM

I sued a big bad CA. One day they subpoenaed me for a deposition. I arrived early, talked to the other lawyer, who asked me what will it take for me to settle? We exchanged figures. So far so good. I was aiming a little high and the other lawyer was aiming way too low, and then I bluffed... I thought that was part of the process and that any discussions for settlement were confidential.

We did not agree to anything so the court reporter arrived and I got sworn in. During the deposition, the lawyer asked me if I had said what I said earlier that day (yes or no?).

It was my first experience at a deposition so I did not object and answered truthfully.

Did I set myself up for the big bad CA coming back and claiming my lawsuit is frivolous because of something I said during settlement negotiations, before I was sworn in, etc.?

Later on, we went to mediation. When the lawyer threatened me about countersuing me and/or seeking sanctions for filing a frivolous lawsuit I told her shame on her because I had an expectation of privacy during settlement negotiations and that in any oral communication she was supposed to give me a mini-miranda saying she is a debt collector and any information will be used to collect the debt. Obviusly she did not warn me.

I have a legitimate case otherwise, which is worth much more than what she offered me.

I guess she could be bluffing now... but she succeeded at making me doubt myself.

Enigma · 07-09-2008, 12:11 AM

First of all you should have taken an attorney to your depo, you learned a hard lesson.

You could have said "I do not recall".

Quote:

that in any oral communication she was supposed to give me a mini-miranda saying she is a debt collector and any information will be used to collect the debt. Obviusly she did not warn me.

You've got to be kidding me! Lawyer's are not law enforcement. She had no duty to warn you. Another lesson learned.

cjtx · 07-09-2008, 12:33 AM

You are absolutely right, I should have taken an attorney with me and it was a hard lesson to learn.

But the thing about the miranda I'm referring to is like the mini-miranda you get with collection letters as per FDCPA: "This is an attempt to collect a debt....". State law requires that kind of disclaimer in all written and oral communications.

Enigma · 07-09-2008, 12:53 AM

Quote:

Originally Posted by cjtx

You are absolutely right, I should have taken an attorney with me and it was a hard lesson to learn.

But the thing about the miranda I'm referring to is like the mini-miranda you get with collection letters as per FDCPA: "This is an attempt to collect a debt....". State law requires that kind of disclaimer in all written and oral communications.

For which state and prove she did not inform you.

Generally, litigation does not fall within the definition of a communication as per the FDCPA updates.

cjtx · 07-09-2008, 01:13 AM

Quote:

Originally Posted by Enigma

For which state and prove she did not inform you.

Texas Finance Code 392.304(a)(5):

(5) in the case of a third-party debt collector, failing to disclose, except in a formal pleading made in connection with a legal action:
(A) that the communication is an attempt to collect a debt and that any information obtained will be used for that purpose, if the communication is the initial written or oral communication between the third-party debt collector and the debtor; or
(B) that the communication is from a debt collector, if the communication is a subsequent written or oral communication between the third-party debt collector and the debtor;

None of the letters from that attorney (not just the motions or pleadings) have the required disclosure. Her law firm is bonded with the SOS to collect debts in Texas.

Are 10+ letters enough proof to show a pattern?

Enigma · 07-09-2008, 01:34 AM

I am not up on TX code or case law. But we have a few here that are and I'll have to defer to them.

Pale Rider · 07-09-2008, 08:19 AM

Quote:

Originally Posted by cjtx

Later on, we went to mediation. When the lawyer threatened me about countersuing me and/or seeking sanctions for filing a frivolous lawsuit I told her shame on her

Countersue for what? The original debt? In many cases that is not allowed. Is it past SOL?

Frivolous? She would have to prove that. If you have a valid claim, she would be wasting her time.

cjtx · 07-09-2008, 09:51 AM

She claims that what I admitted to saying in my deposition is the textbook definition of bad faith and so she is extremely confident that I am going to end up paying all their defense costs.