Six Lessons For Advocates That I Learned as an Acting Small Claims Judge

by Rich Cassidy on December 8, 2016

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

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