small-claims-complaintJudge for a Day

We don’t have a regular small claims court judge in my county (Chittenden County, which is in the greater Burlington, Vermont area), and for some years the Vermont Judiciary has covered this docket by appointing volunteer local attorneys to hear the cases as acting judges. Even before that, I used to fill in for the magistrate judge’s days off before she retired, so roughly every 3 or 4 months for the more than five years, I have served as an acting judge for a day.

I enjoy doing it. Many of the stories litigants tell are interesting, and it can be challenging to try to find a just result within the law. That is a challenge that it feels great to meet.

Most of the cases are very simple: unpaid credit card debts, landlord tenant disputes over damage deposits and the like. Some are not. The court’s limited monetary jurisdiction, $5,000, is no guarantee of factual or legal simplicity.

In most of the cases, there are no lawyers, so the judge must usually know or find the law without the assistance of counsel.

I once had a case between members of one of our refugee communities about whether $5,000 advanced by one member of the community to another was debt or equity. The advance was acknowledged, but nothing was in writing and the terms were hotly disputed. Neither party spoke English as a first language, and one of the witnesses spoke no English at all. Charging interest was prohibited by the religious beliefs of both parties.

Another case involved the application of the implied warranty of fitness for a particular purpose, and the implied covenant of good faith and fair dealing, and dozens of elements of alleged damage on a counterclaim.

And there is a fair amount of docket pressure. The Chittenden small claims docket is the busiest civil docket in the state. A day of merits hearings may see cases all day long, scheduled 15 minutes apart.

What Have I Learned? 

It is not only interesting, it has been a great learning experience. It helps to drive home some of the fundamentals of good advocacy.  In fact, any lawyer who has the chance to serve in any neutral role will be a better advocate for having done it.

So what have I learned?

1. Be Organized.

The judge knows nothing, or next to nothing, about your case, so unless there is very strong reason to do something else, present your case as a chronological narrative, beginning at the beginning and moving to the end. That helps the judge see the facts in context.

2. Keep It Simple.

The judge is struggling to understand the case and understand it fast.  Some parties — and many lawyers — can’t resist presenting facts that they know don’t really matter or that they hope will appeal to a judge’s perceived pre-existing attitudes. Unnecessary complexity doesn’t help.

3.  If You Can, Present Your Case With Some Visual Exhibits As Well As By Testimony

A picture, or a good chart, really can be worth a thousand words. Most people, including most judges and jurors, are better visual than auditory learners. Allmost all of us learn better when more than one of the five senses is engaged. (And smell is usually not one the advocate wishes to engage in Court!) A document or writing or almost any exhibit can help the judge remember salient facts when it’s time to decide.

4. Speak Up

If you can’t be heard, you won’t be understood.

5.  Protect Your Credibility

You likely don’t have to win every point to win your case, so don’t defend the indefensible, and don’t assert facts and arguments that just don’t hold water.

6. Settle Your Case If You Possibly Can

The litigation process is imperfect at best. Key witness don’t show up or don’t testify as expected. Judges and juries have biases (and often don’t even realize what they are). And some cases are just close. When a case comes down to a question of credibility, and there is no strong reason not to believe one witness or another, the outcome can be a coin flip. So avoid the risk of loss if a decent compromise is within reach.

These are lawyering basics. They apply in all cases, large or small. All professional advocates should know them, but sitting as a judge proves to me that not all do.



Rich Cassidy Law Debuts

by Rich Cassidy on November 21, 2016

rcl-001-logo_final_small1a-01With the unfailing support of my wife, Becky Cassidy, the assistance of my able associate, Matt Shagam, and the diligent efforts of our business manager, Linda Jackman, we opened a new law firm, Rich Cassidy Law on November 1, 2016.

Our new firm represents people, not businesses or institutions. The firm focuses on personal injury litigation and employment law. It represents people who have been injured due to the fault of others and employees in disputes with their employers or former employers.

Lots of lawyers take care of businesses and institutions, but not so many focus on individuals. Early in my career, I represented all sides in many kinds of disputes. I simply didn’t find it satisfying to represent insurance companies and big businesses. Business must pay attention to the bottom line. But many companies don’t seem to care about anything else. They just want to resolve claims as cheaply as they can. For them, peoples’ troubles are just balance sheet issues. Serving that narrow way of seeing the world is not how I want to spend my life. My colleague, Matt Shagam, and I, work for individuals who need our help.

I will also continue my work as a mediator and arbitrator.

Why go to the trouble and expense of opening a new firm in the 36th year of my practice and 27 years after cofounding Hoff Curtis? To build a law firm that focuses on the clients I want to represent and the cases that I want to do. A firm that supports my efforts to be active in improving the justice and fairness of the law, and makes a point of giving back to the community in which we live and work. If people who need justice can’t find lawyers to represent them, access to justice is a myth. We can’t fill the whole gap, even here Vermont, but we can do our share.

I must admit that it is sad to give up my public association with the names of my friends and mentors, Phil Hoff and David Curtis. But I know that our new firm shares the values that animated our efforts together in 1989.

We now begin day 21 of our new effort. Because we are organizing our practice and working our cases at the same time, the experience is bit like drinking directly from a proverbial open fire hydrant. Still, it is fun and exciting, and brings new energy to the work that I love.

The opportunity to start from scratch means we can begin with the most efficient technology. We are using a new practice management tool, Clio, and using cloud storage and virtually paperless filing. Our new web site is a work in progress. A new blog, to supplement, but not replace, is in development. Watch this space to see how it all works! 2013-12-21-14-05-21baxter-portrait-001

And Baxter, my dog, continues to come to work with me nearly every day. His calm and friendly demeanor helps keep us all on track.

So far, so good!



Will Kuligoski v. Brattleboro Retreat Profoundly Change Psychiatric Care in Vermont?

October 2, 2016

The News Story Burlington’s CBS TV affiliate, WCAX, Channel 3, covered the subject of my last post, “Mental Health Care Providers Have a Duty to Adequately Inform Caregivers About Dangerous Patients.” Reporter Kyle Midura took on the challenge of summarizing a complex problem in 2 minutes  and 39 seconds. The story asks a fair question: […]

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Mental Health Care Providers Have a Duty to Adequately Inform Caregivers About Dangerous Patients

September 20, 2016

Do Hard Cases Make Bad Law? The idea that hard cases make bad law is often repeated,[1] but is not always correct. Law professors using the Socratic Method often change the facts of a hypothetical to flesh out the meaning and limitations of a legal principle for students. For example, a law professor might say, […]

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End of Summer Reflections

September 6, 2016

Labor Day has passed. And OnLawyering has inadvertently taken the whole summer off! I assure you that’s not because its principal has done the same. Just the opposite. For me it has been an outrageously busy and quite productive summer. There just was no time to post. Summertime is really quite different now than it […]

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Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender

May 27, 2016

“Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1] Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral […]

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Deflategate is a Legal Vacuum

May 3, 2016

Last week the Second Circuit Court of Appeals[1] upheld the ruling of NFL Commissioner Roger Goodell to suspend Tom Brady for four games because of his alleged role in the Deflategate scandal. It is a decision that should have been no surprise to lawyers who understand the law of arbitration. That is because — as a […]

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Should Your Law Firm Have a Social Mission?

April 1, 2016

That question has been running through my mind anew since I happened to pick up the March issue of Inc. Magazine last weekend. The cover story, Why Shark Tank’s Kevin O’Leary Wants You to be Evil,” pits traditional entrepreneur O’Leary against Adam Lowery, who is described as co-founder and chief global sustainability officer of Method, […]

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Hon. John L. Pacht: John, Congratulations, Farewell and Good Luck!

March 12, 2016

“For everything, there is a season.” –Pete Seeger On Friday, one of our founders at Hoff Curtis, John L. Pacht, left us as Vermont Governor Peter Shumlin swore him in as a Superior Judge. Our Superior Court Judges are generalist trial court judges, but Governor Shumlin appointed John to fill a judgeship recently funded to help […]

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Truth is Stranger than Fiction

January 4, 2016

Review: John Surratt: The Lincoln Assassin Who Got Away (Seattle, WA: Bennett & Hastings Publishing 2015) 361 pages, $18.95 “Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn’t.” ―Mark Twain, Following the Equator: A Journey Around the World (Hartford, CT: American Publishing Company 1897). Certainly, the […]

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