Back on January 10th, I worried that baby steps would never lead to true Small Claims Court reform. Today, I have to start worrying about backward steps in the battle to make access to civil justice more affordable and available.
You see, on Jan. 1st,2004, the dollar limits in New York small claims courts were raised from $3000 to $5000 — with no help at all from the organized bar in NYS (which is tantamount to opposition). Today, The Sunday Gazette quotes Schenectady City Court Judge Guido Loyola, who handles small claims matters, as saying he sees no increase in claims yet, after four weeks. Nonetheless, he does see one change already:
“[T]he introduction of attorneys into the court where litigants traditionally represent themselves.
“‘This will be an incentive for more attorneys to use small claims,’ he said, ‘The cost benefit wasn’t there, but with a $5000 limit, it could be lucrative.”
Unfortunately, you need a subscription to see the article on the Gazette (I won’t pay, but I have a hardcopy) (“Small claims limit up,” 02-01-04, B1, by Steven Cook). Some readers think that skepticalEsq makes stuff like this up to make lawyers look bad. Already, my optimist friend Carolyn Elefant is thinking something like, “Well, the nice lawyers are saving their clients money by switching to the less formal court; or the client might insist on having the lawyer present” That might be true in a few instances, but ethicalEsq has to ask “Why couldn’t the lawyer give the client a brochure (available at court) on how to file a small claims petition, maybe help organize necessary paperwork (if necessary), and let the client avoid a court-appearance fee that will be a significant part of even the maximum judgment of $5000?” Rhetorical question.
I’ve only lived in Schenectady since 1988. Guido Loyola has lived and practiced law in Schenectady his whole life. His analysis is that the lawyers are suddenly appearing in Small Claims Court because “it could be lucrative.” (Yes, many lawyers are poor enough in Schenectady that a Small Claims case fee could seem lucrative, but the citizens are even poorer). I’ll take his word on it. And, shake my head again, wondering how I’ll ever keep my resolution to be more positive this year.
David:
It’s been my own experience that many times clients do want and prefer attorneys to represent them. Sometimes, those clients find that the attorneys’ fees are too high and decide to represent themselves because they either determine that the attorney won’t add value or because self-representation is preferable to dropping the case. Even if all of the self-help options discussed are readily available in small claims, I think many clients would choose to retain an attorney if it were relatively cost effective to do so (e.g., for a $5000 claim, pay the attorney $500-$750 to fill out the forms and hold the client’s hand through the process)
I think that as attorneys, we often forget how intimidating the judicial process can be. I have represented the gamut – from indigent debtors and criminal defendants to reasonably sophisticated small business people. Virtually every one, no matter how articulate or boastful in my office, becomes a cowering, nervous wreck when the case is called or when it’s time to testify before the jury. And in those situations, they rely on me, their attorney, to get them through the case. Now, perhaps there are ways to make even small claims less intimidating (I don’t know if Judge Judy has helped or hurt in that regard), but until people start to feel at home in the judicial system, even small claims court may be a situation where they will want an attorney – particularly if the other side has one (and bear in mind, in lots of piddly cases like car bootings or tiny collections, the other side has an attorney)
Comment by Carolyn Elefant — February 1, 2004 @ 11:52 pm
David:
It’s been my own experience that many times clients do want and prefer attorneys to represent them. Sometimes, those clients find that the attorneys’ fees are too high and decide to represent themselves because they either determine that the attorney won’t add value or because self-representation is preferable to dropping the case. Even if all of the self-help options discussed are readily available in small claims, I think many clients would choose to retain an attorney if it were relatively cost effective to do so (e.g., for a $5000 claim, pay the attorney $500-$750 to fill out the forms and hold the client’s hand through the process)
I think that as attorneys, we often forget how intimidating the judicial process can be. I have represented the gamut – from indigent debtors and criminal defendants to reasonably sophisticated small business people. Virtually every one, no matter how articulate or boastful in my office, becomes a cowering, nervous wreck when the case is called or when it’s time to testify before the jury. And in those situations, they rely on me, their attorney, to get them through the case. Now, perhaps there are ways to make even small claims less intimidating (I don’t know if Judge Judy has helped or hurt in that regard), but until people start to feel at home in the judicial system, even small claims court may be a situation where they will want an attorney – particularly if the other side has one (and bear in mind, in lots of piddly cases like car bootings or tiny collections, the other side has an attorney)
Comment by Carolyn Elefant — February 1, 2004 @ 11:52 pm
Thanks for letting me use you as a (very good natured) foil, Ms. E.
Most human beings would almost always prefer to have professional or expert help in solving problems. But, it’s price that keeps them from satisfying that desire. Before I came to a relatively poor city, and became relatively poor myself due to illness, I probably thought that $500 isn’t much money. But I’ve learned that it is a lot of money to a very large percentage of the population, even in an affluent nation like ours.
I’ve seen people — employed, hard working — agonize over such sums. Despite some stage-freight, most of them should be hearing from their lawyer-fiduciaries that small claims court is set up so that attorneys are not needed, and that the judge’s role is to make sure that a party with an attorney does not get special advantages.
p..s. I’m also absolutely certain that you do a lot better job at hand-holding, and trying to keep fees at a minimum, than most of the lawyers who would populate small claims court.
Comment by David Giacalone — February 2, 2004 @ 12:37 am
Thanks for letting me use you as a (very good natured) foil, Ms. E.
Most human beings would almost always prefer to have professional or expert help in solving problems. But, it’s price that keeps them from satisfying that desire. Before I came to a relatively poor city, and became relatively poor myself due to illness, I probably thought that $500 isn’t much money. But I’ve learned that it is a lot of money to a very large percentage of the population, even in an affluent nation like ours.
I’ve seen people — employed, hard working — agonize over such sums. Despite some stage-freight, most of them should be hearing from their lawyer-fiduciaries that small claims court is set up so that attorneys are not needed, and that the judge’s role is to make sure that a party with an attorney does not get special advantages.
p..s. I’m also absolutely certain that you do a lot better job at hand-holding, and trying to keep fees at a minimum, than most of the lawyers who would populate small claims court.
Comment by David Giacalone — February 2, 2004 @ 12:37 am
David:
Just to be clear – I think $500 is a lot of money too. I definitely think twice about spending $500 be it on a new printer or something for my office or a recreational item or vacation. But, I used the figure more in the context of a cost benefit analysis – how spending $500 to recover $5000 that one might never see again might be a worthwhile decision.In other words, despite $500 being a large amount, people might be willing to spend it to come out ahead. By contrast, $50 is a much smaller amount, which more people are likely to have – but spending it to recover $75 (plus court time, etc…) is likely not going to be the wisest decision.
Comment by Carolyn Elefant — February 2, 2004 @ 4:44 pm
David:
Just to be clear – I think $500 is a lot of money too. I definitely think twice about spending $500 be it on a new printer or something for my office or a recreational item or vacation. But, I used the figure more in the context of a cost benefit analysis – how spending $500 to recover $5000 that one might never see again might be a worthwhile decision.In other words, despite $500 being a large amount, people might be willing to spend it to come out ahead. By contrast, $50 is a much smaller amount, which more people are likely to have – but spending it to recover $75 (plus court time, etc…) is likely not going to be the wisest decision.
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