Legal eagles and real estate types, I need your help and advice

In My Humble Opinion (IMHO)
#21

What’s with this “wasting the court’s time” business that everyone who dislikes SCC is spouting??? The court EXISTS to hear small claims cases. As long as my case meets their minimum and is not deemed frivolous, I’m not wasting anybody’s time – period, end of story; I’m availing myself of a resource that every taxpaying citizen is entitled to access – like the Police Dept. and Fire Dept.

Now, if you have a problem with the very existence of SCC, I suggest you lobby to have it abolished by legislative means, not stand by the doorway shooting spitballs at the people who wish pass.

That having been said (Jeez!), I want to thank everyone who has contributed to this thread so far – naysayers and supporters alike. I hope that everyone who feels comfortable doing so, contributes to post. Let’s just keep it civil. Thanks.

Oh, and ResIpsaLoquitor, I like the cut of your jib. Couldn’t have said it better myself.

#22

Every jurisdiction differs. Bear in mind that everything I say in this post pertains to my jurisdiction only. In mine there is no prohibition against suing for $170, but there are court fees and costs limitations in place to strongly discourage such a misuse of resources.

For example, if I run a regular case (as opposed to a small claims case), there will be court fees, but there will also be the probability of the loser having to pay some portion of the winner’s legal fees, with the portion based on how the case was run. What it really comes down to, is that through the awarding of costs, the system comes down hard on those who waste its time.

If my action is for less than $10K, then the regular court will refuse to hear it, and instead its small claims division will hear it. Again there are court fees, and again there are cost sanctions. Minimally, the fees will include $50 to start it up, $100 to set down for trial, and $35 for a writ of seizure and sale. Assuming there will be no motions (fees for those), examination in aid of execution (fee for that), or any other such detour (they all have fees), there will still be non-court fees for the sheriff, the process server, the title searcher, and the corporate searcher. That makes the case a financial loser from the git go.

To further discourage the waste of public resources on trivial matters, the small claims court puts a strict limit on how much it will award in costs to the winner. There is a schedule, but it comes out to only a few hundred for most cases. In small claims you can’t expect to be compensated beyond this amount for your legal expenses even if they run into the thousands. Note how this differs from the regular non-small claims court where there is no such cap. And here’s the kicker. If you are suing for less than $500, you are not allowed any costs award for legal fees or for your inconvenience and expense. Thus although there is no prohibition against actions for $170, the system ensures that the court fees will make it prohibitive, and that there will be no way to recover legal costs from the loser as there otherwise normally would be.

All this is still not enough to steer away hobbyists who have time on their hands and a few coins to throw away, so the system has set the initial filing fee for frequent users almost three times higher, and the setting down for trial fee about thirty percent higher. This puts actions for $170 into the realm of silliness.

I can’t speak for any other jurisdiction (especially concerning costs awards), but as you can see from the above, in my jurisdiction the system strongly discourages trivial actions, but does not prohibit them.

Fortunately, the disincentives are enough to ward off most hobbyists, so the system is able to tolerate those few who have a bee in their bonnet and don’t care about it costing significantly more to win than their potential winnings, and don’t care about their own social responsibility to not waste the public’s resources. If a significant portion of small claims claimants were hobbyists, then the system would simply re-adjust the fees and costs schedules accordingly to extend the disincentives already in place against trivial actions.

#23

Res, it is not that Stuy should not have his day in court, but rather that if he choses to have his day in court and wins big time, and collects the entire amount, he will still be monetarily worse off than he is already. If he wants to worsen his situation, that is his right, but in my opinion it is wrong for him to draw on the public purse in his efforts to worsen his own situation.

#24

There are posts in this thread complaining about or disliking the small claims court, or recommending it’s abolishment? I have not seen any such posts.

#25

Once you are a lawyer, you will have to advise your clients as to whether or not it is a waste to sue (be it $150 or $150K or $1.5M). There is no bright-line, just your bright-mind. Making those calls can be extremely difficult sometimes.

If you make the wrong call, you can expect that the client will have your bill assessed (or if your gave really rotten advice, go after you for negligence or have you nailed by your law society).

When clients want to fight on principle rather than financial return, a bombproof retainer and relesase, cash on the dash, and thorough notes will stand you in good stead, but ultimately you will be expected to step back and use common sense when advising clients. What does common sense say about pressing a liquidated damages case in which a win will result in a net loss?

In the matter at hand, even without legal representation the net cost of the case would exceed the potential winnings, so I submit that a responsible lawyer would advise the client not to proceed despite there being a right to proceed.

#26

Realize that even if you get a judgment against a particular party, you have to collect - which takes more time and effort.

Everyone must make their own judgment as to what amount is worth how much effort. When I was in private practice, I billed myself pretty cheaply, and still figured if I billed hourly it was tough to represent someone in a suit asking less than $10G.

IMO, if you go through the efforts of suing someone over $170, you are putting a pretty low price on the value of your time and effort. Principle can be a pretty expensive thing to litigate for.

#27

Muffin, you wrote:

“If he wants to worsen his situation, that is his right, but in my opinion it is wrong for him to draw on the public purse in his efforts to worsen his own situation.”

I’m puzzled by your use of the word “wrong” in the above sentence? For whom is it wrong (me, society, the government, the judicial system, legal professionals?) and for what reason?

#28

OK, now I get your point, and I don’t have any disagreement with it. You seem to be speaking to legal efficiency rather than to principles of justice. Which, as I see it, is fine; hence my earlier comments that the courts really are supposed to be a last resort, and that private citizens should reasonably work out their disputes. Again, Stuy’s best bet is to track the guy down himself, or as he’s creatively considered, his employer.

As to your second post, again it’s sensible, but is it normal for people to be represented by a lawyer in small claims court? Being a year away from entering practice myself, I don’t know how this works, but if someone came into my office with a $150 claim, I’d imagine that I’d tell him he doesn’t need representation. Maybe I’d give him a quick walk-through on what information he needs to get and what evidence he should bring to court (photo evidence of the bike’s damage, a copy of the letter the guy sent him), and maybe even recommend a “how to” legal book of some sort. (Stuy even did some of that right here: posting a legal question on the SMDB doesn’t cost him any more than what his phone company is charging him.)

#29

Muffin, I’m afraid I’ve got another bone to pick with your posts. About 3 or 4 times you describe a suit like mine “a waste of public resources” and “a waste of the court’s time.”

Well, let’s look over my situation. I’m 43 years old. I’ve been paying taxes all my wage-earning life. Furthermore, I consider myself a reasonably good citizen; I vote, serve jury duty and obey the laws.

Now, let’s crunch some numbers. What have I done in those 43 years?

I’ve used the public sidewalks, roads and water willy-nilly. I’ve used public libraries maybe 1000 times. I’ve called upon the NYPD maybe 20 times; the Fire Department maybe 5 times. I’ve used the public parks maybe 3000 times. Public museums maybe 100 times. And I attended public HS for 4 years.

I have also availed myself of the civil court system ONCE. If I go through with the case against the bike-tipper, that will make TWICE. In 43 years.

ALL of the above civic resources – parks, public schools, the courts, and the rest – are money-losing operations. There are no turnstiles at the gates of Central Park. And, I contend, there is nothing “wrong” with that; there was a greater good to be served than money when those institutions were created; and together, we citizens share the financial burden of paying for them.

So, I contend that I am not “wasting public resources” when I access the court system I have a stake in supporting. I am USING it, like it was meant to be used. Just like when I play ball in the park, or call 911, or check out a book from the library.

#30

Representation depends on the jurisdiction. I’ve even heard of some where lawyers are not allowed, and many in which para-legals are the norm. In mine, however, lawyers are the norm, which is hugely inefficient. I look forward to para-legals gaining a better foothold in my district.

I don’t have any figures, so I can’t really say what the stats are, but my best guess is that most cases are contract disputes and debtor judgments – neither of which require much legal experience. Post-judgment collections, however, are another thing, for folks with no experience can end up going in circles with nothing to show for their efforts. Here again a good para-legal could help.

**

As far as spending time helping people with small claims, it really depends on how you operate your practice and how much you have to collect to keep your practice in the black. By the time you pay fixed and variable overheads and a moderate wage to yourself, you’ll find that you have to put in a lot of hours. If you are in a Cadillac firm, expect to put in a great many hours. The only thing you have to sell is your time, and it will be in short supply. Once you are busting your butt to keep afloat, you’ll think carefully about how best to handle your pro bono matters. Should you help a needy mother obtain child support, or help a hospital purchase a building, or help a community club incorporate, or help a person in a petty monetary dispute? On which matter would you want to spend your efforts? Odds are that you won’t spend your pro bona efforts on matters with little merritt, unless you simply find it relaxing to take the occasional break to offer free advice.

Efficiency is very important, and for most contract disputes and debtor judgment matters it is usually quicker and easier to actually pump out the claim or defence than it is to explain to the person how to do it. If you are going to be spending time pumping out pleadings, then why not skip the fries and go for the steak by working on more interesting cases which will help you develop as a lawyer and therefore make you more marketable? When you start out as a lawyer, small claims work can be an excellent way of getting your feet wet, but it gets stale pretty quickly, and can lead to a dead end if you let it become a significant part of your practice.

#31

stuy, your having paid taxes has nothing to do with whether a particular case is a waste of the public’s purse. Similarly, just because you have a right to bring a case does not preclude that case from being a waste of the public’s purse.

What is comes down to, is that you intend to bring an action for liquidated damages that are so trivial that even if you win you will come out poorer. That is not what court is for, as you can see through my post on how the court uses court fees and cost limitations to discourage such actions.

Yes, you have the right to bring an action for $175 concerning a tipped motorcycle, just as you have the right to call the police to investigate the tipping of your motorcycle, or to call the fire department to inspect the tank of your tipped motorcycle, or any number of other pointless draws on the public’s purse. But exercising your rights without regard to your social responsibility to not waste the public’s purse is just plain wrong-headed. It comes down to maintaining perspective and recognizing one’s ongoing responsibility to not be an embuggerance.

#32

There you go, wrapping your entire argument inside the word “wrong” again.

YOU have defined the utility of the SCC system based on your own highly personal standards of what is wrong and what isn’t. Obviously, the public (the only ones who really get to make those calls) does not agree with your standards, because if they did, they would have abolished the SCC system long ago. (Though getting rid of that pesky $20 minimum in the Seventh Ammendment might be be a little trickier.)

On a less philosophical note, I get the feeling that your SCC experience where you practice does not match mine here in NYC. The last time I used the court (about 14 years ago) it struck me as a very efficient, cost-effective and user-friendly mechanism. As such, it is one of the few truly beloved arms of the legal system here.

Most parties opt to go before a mutually agreed-upon and legally-binding arbitrator (a lawyer who serves WITHOUT PAY) so things tend to zip along. The expensive aspects of normal legal proceedings – using a lawyer to represent either side, going before a real judge, and opting for a jury trial – are discouraged, but are permitted for those who insist.

So, the vast majority of the cases get settled 1. swiftly, 2. without costly legal counsel and 3. by volunteer arbitrators (and 4. all in rather unglamorous settings, I should add).

So, Muffin, come down to the SCC here in NYC. I don’t think you’ll find the huge “abuse of the public purse” that seems to offend you so.

#33

[Stuy], I think you have me there. Since your NYC small claims court fees are of a magnitude less than in my juridiction, then it is rational for you to sue for $150 provided that you do’t value your own time, where where I am, it would not be so. Go get 'em tiger.

#34

GRRRRRRRRR!!!