Oregon State Bar Bulletin AUGUST/SEPTEMBER 2014
Oregonians file more than 77,000 small claims cases annually in the state’s justice and circuit courts. That number is higher than all other civil cases combined and more than all criminal cases, with the exception of traffic court. That number means that thousands of unrepresented people — a number well beyond those we see struggling solo through family court — are braving the court system without much guidance about what to expect or what to do.
But traversing small claims court is easier than wrangling with all the rules and procedures that are part of a circuit court case, isn’t it? There’s no question the small claims process is shorter, and, in most circumstances, less expensive: no formal discovery, no arbitration in damages cases, no strict adherence to the rules of evidence. Except for the few cases in justice courts, however, the parties get only one bite of the apple — there is no recourse to the Oregon Court of Appeals. And, whether or not the rules of civil procedure, uniform trial court rules and local court rules come into play (in many counties they do), the parties still have to prove the elements of their cases in order to prevail on their claims.
According to the state’s few remaining county law librarians, small claims court questions are among their most frequent inquiries. So, when one librarian asked me to consider writing a small claims court handbook, I said yes. Why not? Hadn’t I been referring clients and would-be clients to small claims courts for a couple of decades?
The only thing holding me back was that I’d never gone to small claims court. I’d never even sat in a courtroom waiting for my “real” case to start while a judge was winding up small claims hearings. I hoped to interview lawyers who had appeared in small claims matters; however, inquiring of judges whether they allowed attorneys to appear in small claims cases, I began to suspect that more Oregon lawyers have argued before the United States Supreme Court than have appeared in our state’s “people’s courts.”
Small Claims Court According to the ORS
I headed next to Oregon statutes for guidance on what litigants could expect. ORS 46.415(3) summarizes the goals of small claims proceedings:
The hearing and disposition of all cases shall be informal, the sole object being to dispense justice promptly and economically between the litigants… [T]he judge may investigate the controversy and give judgment or make such orders as the judge deems to be right, just and equitable for the disposition of the controversy.
In short, judges are free to do what they believe is the right thing, freedom that their colleagues in circuit court don’t necessarily have under statutory and evidentiary constraints that don’t apply in small claims cases.
What does that mandate look like in the courtroom? Over the course of a year I surveyed court clerks all over the state and visited 14 counties’ small claims courtrooms — from Klamath and Deschutes to Washington and Benton and Multnomah. I learned just how daunting the small claims process can be for litigants. I also learned how daunting small claims can be for the judges who preside over them; as Multnomah County Circuit Judge pro tem Steve Todd puts it, “It’s like taking the bar exam every day.” The range of the cases is staggering — business contracts and personal injury, car repairs, wage claims, home remodel problems, consumer protection, landlord-tenant, nuisance, libel, professional malpractice, debt collection and state tort claims among them. And the cases, as Judge Todd points out, “aren’t all that small”— up to $10,000.
As for how the judges manage the deluge of cases, I saw them — regular judges and pro tems — almost universally direct patience, thoughtfulness and respect toward those seeking a resolution to their problems. I saw them applying both the law and common sense to those litigants, often explaining their decisions in ways that seemed to bring closure to both sides. I was so impressed by the quality of what judges brought to the courtroom that, two years later, I still remember the very few whose comportment didn’t meet those high standards.
Small Claims Court According to the Clerks’ Office
What happens in the courtroom is often the end of the story for litigants, given that most prevailing parties never collect the judgments they have obtained. Getting there can be its own challenge, as I learned when surveying court clerks. My questions to small claims clerks focused on:
- filing fees and court costs;
- the availability of fee waivers or deferrals;
- whether the court clerk provided written instructions for litigants, and, if they did so, in what languages;
- the range of forms the court offered, and in what languages; whether the court offered mediation in small claims cases;
- how parties could change venue;
- how long parties could expect to wait before their cases were heard;
- whether the clerks were aware of local court rules relating to small claims and, if so, how litigants could learn about those rules.
In a few counties, the clerks had available not only the statutorily required claim forms and notices to defendants, but forms for alternative types of service, motions for default and satisfaction of judgment forms. Some counties had no forms beyond the required ones. Circuit court small claims departments (and the Oregon Judicial Department) make their claim forms available online. (There were no e-filing counties at the time of my survey.) As for justice courts, state law requires that plaintiffs file their cases in person; many of those courts insist that plaintiffs get the forms in person as well. The law and local practice discourage plaintiffs from out of area (and potentially plaintiffs with disabilities) from initiating cases.
Just a few counties offered general written instructions about the process. Most of the instruction sheets did not mention the availability of filing fee waivers or deferral. No county offered forms or instructions in Spanish, even though several counties have Spanish-speaking populations large enough to make limited English competency accommodation appropriate.
Queries about the availability of fee waivers and deferrals met with some interesting answers. In one county, the circuit court clerk was adamant that plaintiffs could not get deferrals, but that defendants could. In a county justice court, the clerk snapped, “It costs $20 to file. Anyone can pay that.” In another justice court, the clerk seemed surprised by the idea of deferring filing fees: “I pretty much know how much everybody makes around here, so it’s never come up. But, yes, I guess I could see where it could, and we would allow that. We’d probably need to make up some kind of form.”
How do small claims departments or justice courts deal with requests for a change of venue? Clerks in all the counties but one had the same response: if the court granted the change, the defendant would have to transcribe the case to the proper court. In the renegade county, the judge would dismiss the claim outright and the plaintiff would have to refile. Wasn’t it possible that the statute of limitations could run before the case could be refiled? Yes. And wouldn’t the plaintiff have to pay the filing fee in both counties? Yes. (In the courts that would allow the case to be transferred, the clerks were divided over whether the plaintiff would have to pay another fee in the proper county.)
As for the time it would take for a case to be heard, the answers ranged from three to five weeks to as long as five to six months. The longer time periods tended to correlate with the opportunity for mediation.
And then there’s the customer service orientation. Most clerks were helpful. Some clerks were enormously generous with their time and information. Others were curt, hostile and intimidating.
Small Claims and Mediation
Mediation can be a critical component of the small claims process. In Multnomah County, for example, those who were able to resolve their cases prehearing through mediation were more than twice as likely to make good on their agreements without the need for the prevailing party to resort to confusing and frustrating collections processes. Mediation also reduces the workload for time-strapped judges. Court-sponsored mediation was available in several counties; it was far from universal, however, particularly not in rural counties. But in one eastern county, the clerk said that justice court offered mediation. It turned out that the clerk was the mediator. The same clerk was also the judge. (Nothing in the Oregon Revised Statutes eliminates the right of small claims litigants to confidentiality in mediation or allows ex parte contacts in small claims cases.)
Going to the Courthouse
Those among us who are accustomed to walking into courtrooms may not remember how intimidating a courthouse can seem to the uninitiated. For anxious people representing themselves, the experience is completely different. They don’t know they may spend time in a line at the courthouse door, removing belts and opening purses. They don’t realize they are going to have trouble finding a place to park. People don’t know that their case is only one of several scheduled at 1:30, and so they believe they will be leaving the building again in a half-hour or so. (Adding information about these issues to hearing notices to the parties would go a long way to addressing these concerns.)
Courthouse reality strikes soon: Did I put enough money in the parking meter? Is this courthouse security line ever going to inch forward? What do you mean, I can’t take my cell phone into the building? What am I supposed to do with it? What if the sitter calls? My kid is sick! Excuse me, do you know where my courtroom is? Do you know who would know?
Many courthouses lack coherent signage to direct people to the proper courtroom, or to let people know where they can ask questions. In one small county, a person entering the front door of the courthouse sees a welcome information desk, but it’s rarely staffed. At the desk, there is no information about where to go or what to do as an alternative. The “security” line at this courthouse isn’t visible at the entrance; it is upstairs just outside the courtroom doors, so that a person gets no timely information about what is acceptable to bring into a courtroom and what is not. In another county, the courthouse is housed in two adjacent buildings with a pedestrian bridge between them. There is almost no signage; finding the right courtroom can take 10 minutes or more — long enough for the judge to call your case and sign a default order against you.
The most challenging courthouse I saw was in Oregon City. Clackamas County outgrew its historic court building more than 30 years ago. Long overdue construction is under way, but, until it is finished, entering this courthouse feels like being herded into the customs hall at the international terminal in San Francisco. There is a crush of people, some standing in ragged lines, many milling around clutching papers and desperately trying to get help. There is no shortage of signs here; there are signs everywhere, dozens and dozens of them, tacked to bulletin boards and taped to the walls lining the hallway. To its credit, this court has attractive, easy-to-see reader boards listing the day’s hearings. But they are on the second floor — not where small claims litigants would know where to look for them.
Small Claims and Judges
Just as in a circuit court case, each judge I saw brought his or her own style to the small claims proceedings. In some counties, the judge would swear in all the parties and witnesses before hearing any of the cases. In others, the swearing in was more formal. In one county, a pro tem judge did not swear in any of the parties or their witnesses. In another county, the judge half-raised a hand sideways and machine-gunned do-you-solemnly-swear-to-tell-the-truth-the-whole-truth-and-nothing-but–the-truth-under-penalty-of-perjury while flipping through files. We all know that some people lie under oath. Knowing that and seeing the range of approaches to decorum and the need to testify truthfully, I wondered how hard the courts should strive to convince people that the truth is important.
Small Claims and the Rules of Evidence
While the rules of evidence usually help us weigh the information proffered by the parties, it’s true that applying the rules in the courtroom takes time and has an impact on the cost to litigate. The main virtue of small claims court is its relative speed at low cost. For that reason, judges in small claims cases don’t have to hold litigants strictly to those evidence rules.
How relaxed were the rules? In some courts, the judges considered everything a party offered, leaving it to the opposing party to object to questionable evidence (that letter from the brother-in-law attesting to the defendant’s honesty, for example). Some judges accepted notarized statements from people not in the room. Some judges rejected statements from those not present without relying on the other party to object. One visibly annoyed judge did not relax the rules at all, acting as both judge and objector. The parties were baffled; they did not know how to make their cases with the judge challenging their every question.
Small Claims and Those Other People in the Courtroom
While litigants tell their stories, everyone else in the courtroom — witnesses, friends, those waiting for their own hearings — listens with rapt attention. I saw that some judges in small claims court clearly were conscious that their role included educating the public. In a case in which an owner sold an animal and then repossessed it in violation of the parties’ contract of sale, the judge gently educated the seller (and everyone else in the courtroom) about the difference between repossession and forfeiture, and in plain language he cautioned people who bought off-the-shelf form contracts that they should make sure they know what the language in those forms means. Great advice. Fifteen people listened attentively, a few of them nodding in appreciation. In a libel case, a pro tem judge used plain English to explain the elements of libel and slander to the parties; he went point by point over the evidence the parties had proffered, and carefully explained why he ruled the way he did. Again, the audience was riveted.
Unfortunately, a few judges seemed oblivious to the impact their words had on the nonlitigants. In two counties where the small claims docket was also the FED docket, the eviction cases were a part of the smorgasbord with small claims matters. In residential nonpayment-of-rent cases, judges in both counties told the litigants, “If you don’t pay the rent, you have to move.” What the judges said to the litigants based on the facts of their cases was true. But it wasn’t an accurate statement of the law with respect to nonpayment generally. (Oregon law allows residential tenants to withhold and to offset rent under some circumstances.) The 30 to 40 people in those two courtrooms left with the misconception that nonpayment for any reason is grounds for eviction. Presumably many other people have heard judges say something similar in those and other courtrooms and may rely on that information to their detriment.
Some judges explained how the parties should proceed: who sits where, who talks first, how to offer physical evidence in support of the claim. The most thorough introduction was in Multnomah County, where, for about seven minutes, litigants listened as a group to how they were expected to present their cases and what they should expect from the judge. Even the Multnomah model had its flaws, however. Its very clear, simple language was interrupted by occasional legalese hiccoughs. And, at the end of the presentation, the clerk reading the information added, in English, “If you need this information in Spanish, please let us know.”
Most judges asked questions to clarify the issues and keep the cases moving along. There were a few outliers, however. In one county, the judge invited all of the plaintiffs to add any other claims they might have, asking defendants if they would have any objection to the surprise claims. Two debt collectors sitting next to me looked at each other in amazement, then traded mock-malicious grins.
Some judges took a more hands-off approach than others. In an extreme case, once the parties had been sworn in, the judge asked the plaintiff, “So, what do you want me to know?” The plaintiff squirmed, clearly having no idea what the question meant. “Uh, pardon?” he finally squeaked. “What I mean is, what do you have that you want to tell me?” the judge continued. Another long silence. Finally the plaintiff tentatively introduced his case, getting an approving nod from the judge. There was a collective sigh from the pews: so that’s what the judge meant.
I saw one case with an easily avoidable unjust result. In a rear-end collision case, the parties told the judge that their insurance companies were in the process of negotiating a settlement. The judge should have continued or dismissed the case without prejudice. The plaintiff told the judge the defendant had been stopped at a stop sign, had started forward, and had then backed into her. The defendant told the court that the plaintiff had rear-ended him. The judge did not ask if the defendant was driving an automatic or a stick shift, if the stop was on an incline, or how close behind the defendant was the plaintiff driving. The judge asked no questions at all, then complained that the parties hadn’t given her enough information to make a decision — and made a ruling in favor of the plaintiff. Now the parties were going to have to contend with the judgment that would prevent their respective insurers from finding out what really happened.
Small Claims and Legalese
As if suddenly afflicted by a communal disease, first-year law students seem helpless to stop themselves from inserting “arguendo” and “ergo” into what used to be normal conversation. By the time we have been in practice for five years, we must exert real effort to choose vocabulary that can be readily understood by people without college educations or significant real-world experience. I listened closely for that problem in small claims court.
Almost every judge in the small claims cases I watched was remarkably sensitive to the need to communicate at a real-people level. The exception sticks in my memory. The parties were in court because the defendant sought to set aside the default in the case against her. The plaintiff, saying he didn’t know what was expected, attempted to put on his case again. Cutting him off, the judge said, “I can’t address the merits until I’ve disposed of the motion to set aside.” The plaintiff said, “Pardon me, your honor? I don’t understand.” The judge hissed, “I. Said. I. Will. Address. The. Merits. After. I. Deal. With. The. Motion. To. Set. Aside. Now do you understand?” “No. Not really,” the plaintiff admitted. Giving him a disgusted look, the judge turned to the defendant to hear her explanation for not having appeared for her original court date. The judge then denied the motion. The plaintiff asked, “Now do we put on our case?” “No, you don’t. The case is over,” snapped the judge. “But what happens now?” the defendant asked. “It’s over,” the judge said. Donning the voice of everyone’s annoying 9-year-old brother, the judge then sing-songed, “You lose! You lose!” and immediately called the next case. The defendant burst into tears. Walking past me, the plaintiff’s wife said to him, “What just happened?” The plaintiff muttered, “Damned if I know. I just want to get out of here.” What just happened, I wanted to say, was the toxic combination of legalese and plain old meanness, and that I hoped they wouldn’t think what they had just experienced was typical of what they would find in Oregon’s judicial system. Because it wasn’t.
We know that every judicial system is an abstract concept, made to work, imperfectly, by fallible people with their quirks and prejudices and moods. Studies in business and in courts have shown that when we think we are being watched, our behavior is better. Given how invisible the workings of small claims court are, Oregon lawyers should be proud to know that the standard of judicial conduct in these cases is generally so high.
Can small claims court be improved? Clearly, some fixes are needed, some of them quick and easy. And there are questions about the equity in allowing some litigants who start in justice court to appeal their cases while denying appeals to those who start in circuit court. Improving access to those without funds and those whose English is limited is another important goal.
ABOUT THE AUTHOR
Janay Haas is the author of Using Small Claims Court in Oregon, available at www.oregonlegalguides.com. She is a long-time legal aid lawyer and currently a senior instructor in criminology and criminal justice at Southern Oregon University.
© 2014 Janay Haas