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Friday, May 03, 2019

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Wolfgang P. Hirczy de Mino, Ph.D.

It would be great if there were a larger market for placing articles and research results on consumer law topics, including--as would be relevant for a social scientist such as myself--empirical research on consumer law as it plays out in the courts.

That said, I would think part of the problem is more fundamental:

CONSUMER LAW JUST ISN'T A LUCRATIVE PRACTICE NICHE

I don’t know about other states, but in Texas you basically cannot make it in consumer law as a lawyer. Therefore, there is no future in it as far as a practice area. And that bleak outlook is unlikely to stimulate much interest beyond the practicing bar.

There is no money in it to support more than just a few attorneys at best—on the consumer’s side, that is. Because consumer law is not a rewarding practice niche, it does not attract attention and talent. It’s not a rewarding career choice, except perhaps for legal aid attorneys that find it less distressing than—say--evictions or family law.

And for those active in this field, the lack of success, whether in trial courts or on appeal, is bound to be demoralizing.

As for consumer class actions, they don’t feed many lawyers to begin with, and when they are filed, you can count on the Texas Supreme Court—if not the intermediate COA-- to undo the certification.

Just last year, the SCOTX sent a rather egregious payday loan case to individual arbitration finding no waiver of the right to arbitrate even though the defendant had resorted to the criminal justice system to force defaulting borrowers to pay. The business model involved depositing customer’s post-dated checks that they knew would bounce, and then forwarding the “bad check” information to the public prosecutor. See Henry v. Cash Biz, LP, 551 S.W.3d 111 (Tex. 2018).

The bulk of consumer cases in Texas courts are debt collection cases. The defendants in these cases don’t have much money to begin with, if any, and it is increasingly difficult to win these cases on evidentiary grounds (insufficient evidence or inadmissible evidence). Because the clients don’t have money, this is not a viable practice area except for a business model involving very large volume: the mirror image of a debt collection lawsuit mill.

There are at least two reasons why consumer debt defense is not, or no longer, viable in Texas, or barely so: (1) The Texas appellate courts have been very hostile to consumer debtors and have loosened substantive and evidentiary standards in collection cases. The Texas Supreme Court typically does not grant review in these cases, so appellate justices don’t run much of a risk of being reversed even if they don’t apply the substantive or procedural law correctly. Until recently, most of the intermediate courts in Texas were all-Republican, and the SCOTX remains all-Republican even now. Friendly territory for governmental defendants, big corporations, and banks; not so much for consumers (and personal injury plaintiffs). So even if a consumer case makes it into the Supreme Court, the likely result will be anti-consumer.

And even the consumer debt cases that are wins for consumers in the intermediate appeals courts typically only result in reversal and remand, rather than in take-nothing judgments.

The other development contributing to poor prospects for consumer-defendants is somewhat paradoxical: The crackdown on abuses by debt buyers (e.g., Midland Funding/Encore, which was sued by the Texas AG some years back) has resulted in the debt-buyer outfits improving their game, including their affidavit production and documentation practices, with the result that they are now winning cases that they would previously have lost (at least in some trial courts). Some of their affidavits are now more detailed and of better quality than those provided banks suing to collect their own debts as original creditors.

And the more compliant conduct by the plaintiffs and their lawyers also reduces the incidence of FDCPA violations, which reduces another potential source of revenue for consumer defense attorneys: fees generated in litigating unfair debt collection cases.

A few law firms in Texas (ranging in size from solo to just a few attorneys) specialized in consumer defense years ago and tried to match the economies of scale and efficiency of the leading collection law firms by soliciting thousands of defendants through letter-mailing campaigns, with defendants’ addresses and case information harvested from fresh court filings (available online for many local court systems in Texas). They developed their own “robo-litigation” systems based on standard electronic templates (boilerplate forms populated with a case-specific specifics) and document production software.

Some of these firms in due course got sued for barratry based on their mass solicitation business model. One of the mass-mailers (Rich Reister in Dallas) managed to get the barratry statute declared unconstitutional after a detour to the Dallas Court of Appeals, but only in Dallas County, and he subsequently went out of the business in any event, and onto other endeavors.

More fundamentally, debt collection cases have become more and more unwinnable, with the effect that consumer-defendants are wasting what little money they have by spending it on attorney’s fees for their defense.

Indeed, consumer debt suit defense in Texas is evolving into something akin to a scam of its own as lawyers who have been doing it for many years already know they will lose (based on past experience with the same creditors, creditors’ law firms, and the same courts) but take upfront money from desperate clients anyhow, only to throw them to the wolves (by not filing responses to summary judgment, for example, not showing up for trial, permitting deemed admissions by not answering discovery, missing deadlines, filing a notice of appeal and then letting the appeal be dismissed for want of prosecution).

Some collection attorney have even crossed over to the defense side, where available money from the targets of their lawsuits—those who manage to come up with any—flows first (and voluntarily) because defendants still believe, or are led to believe, that they will receive effective legal help in tackling the lawsuit against them.

Wolfgang P. Hirczy de Mino, Ph.D. (Political Science, Univ. of Houston, 1992)
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SSRN Author page: https://ssrn.com/author=2845050 (current projects mostly on litigation-related consumer law topics)
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