Despite how easy it looks on television, the law can be scary: an oral argument at the Court of Appeals, or maybe if a lawyer is lucky enough, an argument at the U.S. Supreme Court; or consider an argument in front of a judge known to be cantankerous, and you don’t even have a particularly good argument to make in the first place.
But courts aren’t the only tough audience. It’s also scary to make presentations to a potential new national client when you’re outnumbered in the board room 10 to one. Any of these “situations” can be a little nerve racking. But that is not the fear this column is about. No, today we address the scary specter of lawyers in small claims court.
My first sally into small claims court was to represent my then wife, Chris, who is also an attorney. The dispute that lead me to the death defying day started when she was approached by an angry driver at the dry cleaners. The fellow claimed her minivan kicked up a rock which broke his SUV’s windshield. He insisted on calling the police.
Chris called me to ask for a second opinion. Her question was, “Since I am sure I am not liable, I don’t think I should have to show the policeman my driver’s license, don’t you agree?” After taking a deep cleansing breath, I suggested to her that lack of cooperation with the police was almost always a very bad idea.
At any rate, Chris asked me to defend her in small claims court. The judge was a classmate of Chris and a person I knew well. Although the Plaintiff appeared pro se, it was clear that he had been speaking to a lawyer from the moment he approached the bench, handed the judge a brief, complete with pictures of the “scene of the crime,” and a theory of liability known as res ipsa loquitur (and he pronounced it correctly).
It was at that point that fear set in and my pulse began to race quicker than it ever had during any antitrust or IP litigation, for the last time I had heard that string of Latin words, was during the bar exam, so I had to do, as they say, a little “thinking on my feet.”
Things were not made easier by the lack of rules in small claims court. I asked the Plaintiff questions, he talked about something else. I asked the judge to strike the answers and to instruct the witness to answer the questions. The judge pretty much let the witness say whatever he wanted. After a while the judge became disinterested and terminated my cross exam.
As we left the courtroom, in a reflection upon of my litigation skills, my wife declared we lost the case, concluding, since the judge limited my questions, she must have been mad at me. I was somewhat taken aback at such a rough assessment from my client, but I explained to my non-litigator wife, that, in fact, because the judge had cut off my questioning, it was highly likely that we had won. I explained that if the judge was inclined to rule against us, she probably would have let me ask more questions. I was eventually proven correct, although not before several tense days at home awaiting the ruling.
That was years ago. More recently, I made my second appearance in small claims court – this time it was for a nephew, who had ordered a product, paid a large deposit, yet never received the goods. I explained to him that he could win the case on his own, but if he wanted me to go to court, I would. Sometimes being a nice uncle is a mistake.
A visiting judge heard the case. It was straight forward. My nephew answered my questions well. My cross examination of the defendant went fine, and a few days later, we received the one-line ruling in the mail. We lost. I have no explanation. I’ve been fortunate enough to try cases from antitrust to securities and most subject matters in between. On the unfortunate occasions we lost, I knew why. In small claims court, I didn’t have a clue.
This leads me to last week. My new wife had contacted a traveling TV repairman. Yes, they still exist (although, as you will note as the story unfolds, performance may be an issue). She told him the television was turning off after about 30 minutes. The repairman came right out, installed a part, charged several hundred dollars, and left.
The next day the television turned off after 30 minutes. My wife called him. He admitted to her he had installed a used circuit board. He said he would gladly order a new one and replace it for free. Six months later, the TV was turning off after 15 minutes. The new circuit board was never delivered, and despite promises to refund the money, the repairman had gone incommunicado. Cheryl said, “You’re a lawyer, let’s take him to small claims court.” I told her I didn’t think it was worth our time. I was informed it was a matter of principle.
It was then that I reluctantly had to tell her about the perils of lawyers in small claims court (particularly representing their wives) and suggested that she would do better if she represented herself. She agreed to be chief trial counsel, but she wasn’t happy.
As it turned out the defendant did not show in court (pretty much in the same manner that he had not been showing at our house), so I bravely stepped in to secure the default judgment.
Thus it was, that after winning this dramatic small claims case – and not getting yelled at by my client – we triumphantly left the courthouse and walked to the parking lot. I wasn’t sure we’d ever collect the judgment, but, as I’d been previously informed, this was a matter of principle.
My wife then got into her car, backed it up and collided with an SUV driven by an off duty police officer. So much for our small claims court victory.
©2011 Under Analysis LLC Mark Levison is a member of the law firm Lathrop & Gage LLP. You can reach Under Analysis LLC in care of this paper or by e-mail at comments@levisongroup.com.