Category Archives: Hearing

Small Claims Court Arrest

Posted by on December 23, 2011 No comments

 

In an earlier post, we discussed briefly your demeanor in a small claims court case.  Regardless of what state you are in, you will impress the judge, the court, and the rest of the courtroom if you are prepared and polite.  Do NOT watch Judge Judy, the People’s Court, or any other show expecting to pick up tips.  Interrupting the judge, the opposing party, or anyone else will do nothing but frustrate the judge and make it all the more difficult for you to win your case.

We need look no further than 46-year-old man in Milwaukee County courthouse who was arrested after the commissioner dismissed his case (remember, a judge may not decide your case, it could be a commissioner or a judge pro tem).  Courtroom officials noted the man became combative, yelling profanities, and disrupting the hearings in the gallery.  He even continued resisting once a deputy began to make the arrest, headbutting the initial deputy.  This is a quick trip to jail (Milawaukee County Correctional Facility to be exact) and to lose your case.

By far you will make a better impression by being punctual, prepared, and polite.  This applies to everyone in the courthouse from the security personnel who screen you as you enter the facility, to the employees in the clerk’s office, to the court clerk and bailiff in the courtroom.  You show respect to the judge and the judicial procedure by treating these people with professionalism.  The court will treat you with respect and will require the opposing party to treat you with respect as well.

Visit the local news affiliate for more information on the Milwaukee County Small Claims Court incident.

California Small Claims Court Rules

Posted by on July 19, 2011 3 comments

What are the California Small Claims court rules?

California Small Claims Court Rules

California Small Claims Court Rules

There are two types of rules that we use in California for small claims court cases.  State-wide rules and local rules and the names are very descriptive of what they are.  State-wide rules apply to the entire state of California (from Siskiyou to San Diego–North/South or the Pacific Ocean to the Arizona/Nevada border–West/East).

You know what is great?  Small claims court is intended to provide a venue that is easily accessible to people without any legal education or training.  There are no juries, no formal pleadings, rules of evidence, or findings in small claims court actions.  This is codified (fancy word for stated) in California Code of Civil Procedure section 116.120(b) which reads:

In order to resolve minor civil disputes expeditiously, inexpensively, and fairly, it is essential to provide a judicial forum accessible to all parties directly involved in resolving these disputes.

What the court is saying here is we need to have a special system in place that makes it easy for nonlawyers (or lay people) to have their day in court.

In fact, the training that judges undertake encourage judges to take an active role in determining the facts that are in dispute by witnesses.  Judges may consult with witnesses informally (asking the witness questions straight from the bench).  Contrary to what you think, it is nothing like what you see on television with Judge Judy or some other infamous judge.  Here, the judge will likely be cordial, courteous, and polite with all the parties.

What rules does the judge follow in making a decision?

Common sense.  Seriously we’re not joking.  Decisions should be based on substantive law  and on the application of common sense.  So if you know substantive law before you file your small claims court case, you will already have a decent chance of knowing whether you will win or lose.

What are these state-wide rules?

Most of the state-wide rules pertain to the procedures you need to use during your small claims court actions.  When we say procedures, we mean the rules and directions you need to follow when filling out your small claim court forms, when you are serving a defendant, how much time you have to file an appeal, etc.  These rules can be found generally at California Code of Civil Procedure section 116.120 through 116.870.  These are available online.

Does the other side have to follow the rules?

Yes.  Both sides have to follow the rules.  This applies to you if you are the plaintiff (person bringing the claim) or the defendant (person being sued).

What else do the rules cover?

The procedural rules found in the Code of Civil Procedure outline the entire process from who may file a claim (a person/corporation/etc.), where the claim is to be filed (venue/jurisdiction), who may be sued (you can sue your landlord for your security deposit back here), to whether you can amend your claim, whether a defendant can file a claim against the plaintiff as well, states that there is no formal discovery, etc.

For the most part, the rules that govern small claims court cases in California are aimed to be the least obtrusive to the parties while still complying with a level of due process.  Due process is an abstract name we’ve given to a set of ideas we believe are required in order for a judicial process to be fair.  Things like, did both parties have adequate notice of the judicial hearing, did both parties have adequate time to prepare for the hearing, etc.

Questions regarding rules?  Feel free to leave your comments below and we are more than happy to help you understand the rules.

Who will be the judge?

Posted by on May 10, 2011 2 comments
Small Claims Court Judge

Small Claims Court Judge

Most people’s knowledge of small claims court is limited to the People’s Court and Judge Judy.  And unfortunately, this leaves people with a very different perception of what to expect in small claims court.  We can’t tell you who your judge will be (as it even varies within counties), but we can give you some information about what kind of a judge you will likely see.

California Small Claims Court Judge – Not likely a judge

Your small claims court judge will likely not be a judge.  The current caseload in the California judicial system is so backlogged, it is easier for the court to have the judges handle matter that are REQUIRED to be handled by a judge.  You see, the California judicial system uses all types of persons in order to administer justice.  It uses retired judges to come in and fill in for a judge who is on vacation (or sick leave) as well as fill a vacant courtroom when a judge retires.  The system also uses Commissioners.  Commissioners have much of the same training and experience as a judge except they are appointed rather than elected (Note: judges can be appointed, but they must face an election after a certain number of years).  Commissioners are used by the judicial system to hear motions, temporary restraining orders, and other case management issues.

As the judicial system is so backlogged that commissioners are used in civil cases regardless of dollar amount, small claims courtrooms are often handled by attorneys acting as a Judge Pro Tem (fancy word meaning “for the time being.”)

Will I really have an attorney acting as my small claims court judge?

Yes.  The attorney will be acting as what is called a judge pro tem.  As the attorney is not a judge, both sides must stipulate to having the attorney hear the case.  If one side does not stipulate, the case may be required to be heard in a different courtroom, perhaps even on a different day altogether.

What training does a judge pro tem have?

A small claims court judge pro tem will have undergone training to make him or her eligible for the position of judge pro tem.  They will have sat through at least two separate courses (one dealing with judicial ethics and the other detailing the law necessary for a small claims court judge).

They are required to complete this training every three years.

Should I stipulate to the judge pro tem?

The decision is up to you.  With a judge pro tem, you will likely get someone who has handled these types of cases before and is more familiar with how small claims court cases are handled.  With a judge, all bets are off as to when this judge last received training for this area.  For example, the judge you end up with may be from family law and have no experience trying civil cases (small claims court case is a type of civil case-it does not involve depriving someone of life or liberty…only property).

Our recommendation-go down to the courtroom ahead of time and see what the judge is like (note some courts will rotate who through their pro tem judges so call the clerk’s office to find out who your judge will be and find out if they will be sitting as a small claims court judge prior to the date of your hearing.  We recommend doing this anyways as you will learn a lot by watching how the judge handles other cases.  You will learn how the judge rules and will be able to determine what the judge likes.  And what it often comes down to is a well thought out argument with no emotional words or verbal attacks against the other party.  The judge isn’t here to referee a verbal sparring match between you.  The one thing we do like about the small claims court shows on television is that the judges enforce order and do not allow the parties to engage in verbal spats (although they are often way more aggressive than real small claims court judges).

What has you experience been with judges or judges pro tem?  Let us know in the comments below.