Friday, 1 July 2016

One Weird Trick to Defeat Phone Scammers

     I kind of enjoy getting calls from telephone scammers. It's fun to play along with them for as long as possible, deliberately keeping them on the line so they can't call someone more vulnerable to their fraud.
     One recent scam that has been making the rounds here in Canada goes like this: you get a call from someone claiming to be with the Canadian Revenue Agency, informing you that a lawsuit has been filed against you and they need to talk to you right away. Most of the time it's a recorded message, but sometimes it's an actual human. Presumably, the idea of being sued by the taxman is terrifying enough that you go ahead and send them the money via some kind of wire transfer or gift card or something that just conveniently happens not to be traceable, because maybe CRA doesn't want to have to declare the income on its own tax return? Um, yeah, I guess that sounds legit.
     The one time I got an actual human calling me on this one, he sounded very polite and professional, and asked if I was going to be represented by a lawyer in this matter. When I said yes, he didn't miss a beat, and asked me for the contact information for that lawyer. Of course, he didn't actually want to contact my lawyer; he was in fact calling my bluff, because I probably hadn't retained counsel for a matter I'd never heard of before this call. And this was a very skillful bit of psychology, because it put me on the defensive, off-balance knowing that I'd been caught out in a lie.
     Or rather, it would have done that, if not for the fact that I am a lawyer. "Well, the problem," I said "is that I haven't actually seen the Statement of Claim yet." Click.
     He hung up on me immediately. Dang. What a disappointment! I was hoping to keep him on for at least a half an hour.

     But these guys are looking for people who don't know very much about the law, and so my mention of a Statement of Claim marked me as someone who'd probably see through their scam, which depends very heavily on making you feel like you have no power, and you must do whatever they say or else. Which is not actually how law works.

     Now, I'm not currently a practicing lawyer, and this must not be construed as legal advice, but there's a very fundamental principle that underlies pretty much all legal procedure, and if you just understand that one thing, you'll be a lot less vulnerable to scammers and schemers of various sorts. And that principle is basically pretty simple: everyone has a right to make their case. Not necessarily to win, of course, but to present their claim against someone else, or to attempt a full and complete answer to any claim made against them. And that means you need adequate notice of a claim against you; in the case of a lawsuit, you must be served with a Statement of Claim that lays out the particulars of that claim.
     See, when you get down to the very core of it, the job of the courts is to resolve disputes.  If everyone agrees about something, it gets done, it doesn't go to court. If the accused pleads guilty, the court doesn't have to hear the evidence. If the defendant agrees that she owes the plaintiff money, she pays it and the court doesn't get involved. Courts are there to decide who's right when there's actually a question to be decided, and if everyone agrees, there's no question.
     But the court wants to make a just and fair decision, based on all of the evidence and all the best arguments available. Ideally there will be lawyers on both sides, and here's the thing about trial lawyers: you hear them addressed as "Counsel", but that's not because they counsel their clients (although they do that, too). It's because their job is to counsel the Court, to ensure that the court considers every favourable argument for their clients' case. Lawyers are called "officers of the court" for this reason, and you might notice that they refer to each other in court as "my friend" and not "my opponent"; they serve the decision-maker together, even if their clients are bitterly opposed. And the lawyers, in order to provide good counsel to the Court, must have access to all the facts, and have enough time to think and research and formulate arguments.

     Which means that Courts hate surprises.

     Surprise witnesses are a staple of TV and movie courtroom dramas, but they are actually very rare, and only allowed in very particular circumstances. The general principle is that both sides to a dispute must be given adequate notice of something in order to be able to respond intelligently. And in particular, this is why we have rules about serving defendants with a Statement of Claim. If I don't know I'm being sued, I (or my lawyer) cannot prepare arguments. If I don't know the charges against me, I can't mount a defense. And if I don't even know I owe CRA money, I can't be expected to pay them, let alone argue why I don't owe them.

     So the upshot of all this is: If someone threatens you with jail or a lawsuit or seizure of assets or any other sort of legal proceeding unless you pay up right away, and they don't give you enough information or time to make a good faith reasonable effort to ascertain if their claim is valid, they're probably trying to scam you. I say probably because it's possible they have a valid claim and just don't know how to proceed with it, but in any event, the best way to defend yourself against scammers and legitimate claimants alike is with good faith insistence on basic procedural fairness. "Really? I'm being sued? This is the first I've heard of it, but if you say so, perhaps it's just been an oversight that I haven't been properly notified. Could you send me something in writing with the particulars, so I can figure out what's going on and give you a proper answer?"
     And remember that good faith is key, here. If you're using this as a stalling tactic, and you know you actually do owe money, that will eventually catch up to you in court. The point to remember is that the Law isn't about winning, but about following a fair and impartial procedure intended to insure that the person in the right wins. If someone manages to prove to you that you are in the wrong, well, pay up and move on. Fair's fair. But if you suspect someone's trying to scam you, polite insistence on procedural fairness will almost always make them hang up and try to scam someone else.

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