Collector - June 2020 - 44

LASTWORD

Low-Hanging Fruit for Plaintiff's Attorneys?
This interview is an excerpt from a recent episode of ACA's podcast discussing smart litigation strategies.

D

ue diligence can go a long way
toward managing your litigation
risk. On a recent episode of ACA
Cast, Porter Heath Morgan IV, general
counsel at Morgan Financial Group and
partner at Malone Frost Martin PLLC,
and Shannon Smith, founder at LitLogic,
reviewed strategies agencies can use to
make themselves less-appealing targets for
plaintiff's attorneys. This is an edited excerpt
from their conversation.
Morgan: I think from a general perspective,
there's really no way to eliminate risk completely.
The best-case scenario is just looking for ways
to reduce risk and not to make yourself lowhanging fruit for the plaintiff's attorneys and
plaintiff's counsel.
The first thing I'd say from a broad
perspective is that just as agencies' compliance

TM

Podcast Title: Optimizing
Your Operations to Manage
Litigation Risk
Participants: Porter Heath Morgan
IV, general counsel at Morgan
Financial Group and partner
at Malone Frost Martin PLLC;
Shannon Smith, founder at LitLogic
Air date: 2/10/2020

44

management systems have gotten more
sophisticated over the last five to 10 years,
so too has the plaintiff 's attorney business
model grown and evolved over those years.
Just as we do our due diligence with our
litigation and scrub our accounts, they also
are scrubbing their accounts for litigation.
One thing they use for a "credit report"
against our industry is your PACER [Public
Access to Court Electronic Records] lawsuit
history. Now, you may not be aware of this, but
your whole entire litigation history of when
you've been sued, how many times and in what
jurisdiction is all available on the public-access
PACER federal court website. Included on
that website is how quickly you resolve those
cases. If you're difficult litigate and you litigate
all these cases, your case history can be a year
or year-and-a-half long cases. And if you're
an agency that settles cases and settles them
quickly, that information is also going to be
available on the PACER page. If you don't
know your credit history of your agency and
how quickly you settle cases and what your
average is, you should look that up online and
make yourself aware of that because if you're
not aware of it, plaintiff 's counsel certainly is.
Smith: I completely agree with Heath. That's
something that we continually have looked at
over the years and have tried to monitor and
make sure that we have pushed our settlement
amounts, with prior agencies that I've worked
for, out as far as possible so that we have a very
long lifespan on our litigation cases. [We don't
want it to] appear that we are settling right out
of the gate as soon as something is filed against
us. There are a couple of ways to do that or to
push out how long your case stays open.

One is payment plans. I've done several
settlements with plaintiff 's counsels, and it's
been a great negotiation tool and tactic to
use when I'm settling with them. I ask for
the payment arrangement on the settlement
amount to be broken out over several
months. It allows them to buy time with the
court. It allows the case to drag on, per se,
on paper and PACER, until the actual final
payment has been made. That's proven to
show some longevity in our cases, at least on
the PACER model.
Another thing I've done is asked the
plaintiff 's counsel for a waiver of service or
completed a waiver of service, as soon as
the case is filed, and sent it to the plaintiff 's
counsel and ask them to file it with the
courts. Doing so buys you more time to
review the lawsuit and see whether or not
there's any merit to the case. It allows you
time to go talk to the plaintiff 's counsel and
tell them, "Don't serve me. This isn't a viable
case. This is one that should get dismissed,
because here's what we've found," given that
you've had more time to actually review it.
Or if you have found something that's
going to be problematic, it saves you on
service costs that if you do need to settle, it's
one less piece that the plaintiff 's counsel can
add to that settlement amount. Those are
just a few proven tips that have been able
to push out those cases a little bit longer
than just the run-of-the-mill calling, getting
service and having the case resolved within
30 to 60 days.
To listen to the complete interview, visit www.
acainternational.org/acacast.

ACAINTERNATIONAL.ORG


http://www.acainternational.org/acacast http://www.ACAINTERNATIONAL.ORG

Collector - June 2020

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