Documenting Your Case

by Donald E Petersen on July 18, 2017

HOW TO DOCUMENT YOUR TCPA CASE

Defendants in Telephone Consumer Protection Act (“TCPA”) cases often use every trick to deny even calling the plaintiff. Assuming all other facts are equal, the better the person who receives the call (the “Called Party”) preserves records contemporaneously, the better the odds of a favorable recovery as to amount received and the duration of the case.

If time you are already receiving calls, review your cell phone carrier’s log (e.g., “My Verizon” call list) and make a copy, review your incoming phone screen on your device and make a log, and write down everything you remember about any conversations with the caller where you told them to “You’re calling my cell phone. Stop Calling” and, if true, that you were not the person that they were calling about. Mr. Petersen will review this information also during the free initial consultation.

DO NOT RELY ON YOUR WIRELESS CARRIER’S RECORDS TO DOCUMENT ALL OF THE CALLS YOU RECEIVE !

Cell phone users should not rely on the monthly “bills” provided by their wireless provider to prove up the calls that they received. Wireless carrier “bills” exclude unanswered calls including calls which resulted in messages at least after a very brief period of time. So, it’s critical for cell phone users to keep a log of the calls by date, time, incoming phone number and any caller ID information.

HOW TO KEEP YOUR CALL LOG

Your cell phone call log should contain the : (1) date; (2) time; (3) incoming telephone number as shown on your cell phone; and (4) the name of the caller as it appears on your phone. If the incoming number displays as “unknown” (or a blank) and/or the caller name displays as “unknown”, include that information in your log. Your log will look something like this :

DATE	TIME	PHONE NUMBER	CALLER I.D.	COMMENT
06/01/2017	12:14 p.m.	800-800-8000	Unknown	DNLM
06/03/2017	9:07 a.m.	888-888-8888	XYZ Fin	Left Recorded Msg
06/03/2017	01:32 p.m.	800-800-8000	Unknown	DNLM
06/05/2017	06:35 p.m.	“Blank”	Unknown	Left Voice Msg to call 1-866-866-8686
06/06/2017	08:32 a.m.	888-888-8888	XYZ Fin	Left Recorded Msg

“DNLM” means “Did Not Leave Message”. “Blank” means a “blank” appeared where the telephone number would ordinarily appear on caller id.

WHAT ELSE CAN I DO TO IMPROVE MY TCPA CASE?

If you are receiving messages, please save the messages too. This is what helps prove that the caller used a pre-recorded voice and may help me obtain a better (and/or quicker) resolution of your case. Even if the messages are “live” rather than prerecorded, the messages help prove the purpose of the call(s).

Documenting your TCPA case now improves your opportunity to succeed and maximize the value of your case. For a free consultation, call attorney Donald Petersen at (407) 648 – 9050

It is a good idea to take screen shots of the incoming cell phone calls. If you are technologically savy, it’s a good idea to take screen shots of any calls (whether completed or not) including any messages. [It’s o.k. if you do not know how to do this but, if you do, please take screen shots and save them on a secure storage device off-line.] It’s an especially useful to capture a screen shot of showing the dates and times of the calls where users told the caller to “Stop calling”.

Reminding the caller that they are calling a user’s cell phone immediately followed by a clear, unequivocal request (or demand) to “stop calling” is best. People who are receiving unwanted calls on their cell phone should say something unconditional and simple such as “You are calling my cell phone. STOP CALLING”. If the caller is calling for someone else (e.g., “John Doe”), the person could add “I am not John Doe. You are calling my cell phone. Stop Calling!”

In an abundance of caution, Mr. Petersen recommends that cell phone users do not immediately hang up after they instruct the caller to “Stop Calling” but, rather, remain on the line in order to allow the caller to ask reasonable questions (such as who you are but not personal information such as your SSN). This eliminates the callers’ excuse, “but, your honor, the plaintiff did not remain on the line long enough for us to find out who he/she was.”

HOW TO SAVE YOUR SCREEN SHOTS AND MESSAGES

If you have messages or screen shots of incoming calls, I highly recommend that you save the screen shots and messages using the following format :

YYYYDDMM . [“am” OR “pm”] . HHMM . ###-###-#####

without the spaces between the information and the periods. This format means :

YYYYMMDD means the YEAR, MONTH and DAY;

“am” or “pm” means before noon or after noon whichever applies;

HHMM means HOUR and MINUTE on a twelve hour clock;

### – ### – #### means the telephone number that appears in your cell phone’s caller ID. If this number is blocked, blank, or unavailable, the second best option is to list the call back number that the caller left in the voice mail message (if any).

For example, a call from 800-800-8000 received at 1:14 p.m. on June 1, 2017, would be coded as :

20170601.pm.0114.800-800-8000

If you follow this routine each time you save a file, the files will cascade in chronological order which makes them much easier to compare to your telephone logs and the defendant’s dialer logs.

SHOULD YOU RECORD THE TELEPHONE CONVERSATIONS?

Telephone users do NOT need to record the conversations. Some states allow surreptitious recording. These states are referred to as “one party consent states”. Other states (including Florida) require the consent of both parties to the conversation —- these states are often referred to as “two party consent” states. It is extremely important to get it right. Violation of the “wiretapping” statute is a crime. Even if you live in a one-party consent state, the choice of law questions concerning which state’s law to apply are very complicated and often present close questions of law and/or fact. Why screw up a good TCPA case by risking having your evidence excluded and/or criminal prosecution? If you want to learn more about this topic, you can visit the Reporters Committee For Freedom Of The Press and refer to their Reporter’s Guide To Recording but, I urge you — please do not use this resource as a substitute for consulting with an experienced TCPA attorney who is admitted to practice law in your state. The benefits of taping are slight and the potential adverse consequences outweigh any advantages in many (if not most) states.

Contact Mr. Petersen to discuss how to document your potential TCPA case.

GET STARTED TODAY

Documenting your TCPA case early and well provides Mr. Petersen the opportunity to improve your chances of a favorable ruling or verdict on liability and even the amount of damages. Documenting as many of the calls as possible obviously increases the amount a plaintiff could receive. Documenting the calls — especially the substance of the conversation(s) — increases the chances of the court (or a jury) finding that the called party revoke any prior consent (a crucial issue) or even that the caller willfully violated the TCPA.