Sustaining the Burden of Proof

By Mason, Jonathan | Business Credit, June 1993 | Go to article overview

Sustaining the Burden of Proof


Mason, Jonathan, Business Credit


For more than 19 years I have practiced collection recovery law. Traditionally, my firm has prepared investigative reports and suit recommendations asking for documentary evidence prior to litigation action in order to pursue collection recovery of retail and commercial claims.

We have found that, over the years, credit grantors as well as forwarders of claims, are increasingly interested in our investigative determinations and recommendations. In our preparation of reports, we frequently confront the most serious obstacle of sustaining our burden of proof relative to proper documentary evidence.

During the early stages of litigation, we require that clients provide all aspects of relevant information concerning the claim. First, we must have the debtor's legal name and address, including the name and address of any guarantor.

Frequently, we confront a situation where a sole proprietor has terminated business operations and the only course of action may be against the individually named owner of the business.

Credit managers frequently request our opinion as to the collectibility of a litigation matter against the sole proprietor. We advise them as to our experience regarding collection recovery, provide any current financial information on the debtor, and indicate any possible counterclaim.

Documentation Is Essential in Order To Win Suit

Moreover, we examine the documentation to determine the appropriate witness in a case. In some cases, the salesman who handled the transaction should be available to testify, along with the credit manager who has knowledge of the account history. The documents in our file will provide the information necessary to choose the right witness.

Credit grantors frequently request pursuing a case when we do not have the salesman who is involved in the transaction. Quite often, relevant documents can supply the necessary information which would have normally been obtained from the missing sales representative. Therefore, we request that the credit grantor provide the original order forms, shipping documents, and account ledgers. These documents, along with credit agreements, contract, personal guarantees, delivery receipts, and security agreements will assist us in determining whether to proceed with obtaining a judgment when the sales representative is not available.

Cooperation from Grantors Make Lawyers' Efforts Easier

We have frequently found that credit grantors are willing to make the appropriate witnesses available. …

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