Small Claims Court Procedures

The Coral Gables District Court (CGDC) – located at 3100 Ponce De Leon Boulevard in a relatively rich neighborhood- serves as a court for hearing small claims ($5,000 or less), county civil damages, landlord/tenant eviction, circuit civil, and family court cases for Miami-Dade County. The court only has two of its three presiding judges; the third is currently left to a cycle of temporary judges due to the elevation of two other judges to federal and state positions. I attended a small-claims pretrial session which scheduled several cases over a two-hour period. There were a whopping 96 cases on the docket to be heard by a temporary substitute for the missing judges. At 2:00, the clerk began a roll-call of the cases to be reviewed that session, announcing the parties in the case (Litigant vs. Defendant) and whether the defendant had been served the suit (“pending service”). If the defendant was not pending service and did not postpone the pretrial hearing, his absence resulted in a “default,” the plaintiff submitting a final judgment to be signed by the judge. After roll call, the bailiff summoned the judge to the courtroom, and the hearings began. As explained to me by a another bailiff, pre-trial sessions in the CGDC have a few time-saving functions: officially determining whether the case will go to trial, discussing accepted matters of fact, and even providing a time and place on record to pass on paperwork. If the parties had not worked out a settlement by the time of the pretrial, the judge would either refer both parties to mediation (or arbitration), or hear the nature of the case and determine if it was to move to trial.

Immediately noticeable in the process is the resolution of cases at the first step: the roll call. In the 96 cases called, over half of them resulted in defendant default. The impersonality of the suits (a company suing a consumer for “contract & indebtedness”) almost precludes any urge on part of the defense to even show up to court to face a well-equipped “repeat player,” particularly if there is no defense to give for unpaid debts. For most who default, showing up to court would mean missing a day of work just to receive the inevitable final judgment, the binding order to pay a debt (with interest if not paid immediately). The remainder that did not move on to the next step were defendants yet to be served the lawsuit.

In approximately one-fifth of the cases called, a defendant was present to proceed with the pretrial hearing. In only five of these, however, were words unrelated to the settlement paperwork being handed in exchanged between the judge and the relevant parties. In the others, the disputes had already been settled in private conference or mediation. As a local attorney explained, “on average only about 10%” of the cases that complete a pretrial hearing proceed to trial. To be more precise, only 1 of the 96 disputes ended in a scheduled trial. Clearly, the outcomes demonstrated the ability of the court to come to resolution of disputes effectively.

According to G. Alan Tarr, the purpose of a pretrial conference is for the judge and attorney to address the points of agreement and disputed issues. This, of course, assumes that the case will even need to see trial. Many judges encourage and aggressively pursue settlement to avoid trial by referring the involved parties to alternative dispute resolution (mediation, arbitration) and even function in a way as mediators themselves during pretrial.[1] All of these are common practice in the CGDC; the courthouse even provides its own in-staff mediator for an hourly fee. The low ratio of non-defaulted cases that went to trial can be attributed to this tendency.

Repeat Players and One Shotters

The majority of plaintiffs were the court’s RPs (“repeat players”): insurance companies, credit bureaus, banks, and other contract-related businesses, represented by a single attorney over several cases. Likewise, because the court only deals with claims up to $5,000, most of the defendants (that did not default) were OS (“one-shotters”) and self-represented. One significant plaintiff was Asset Acceptance, LLC, a company that “buys” debt from other repeat players, and hires or sends its own lawyers to sue in court for collection of these debts.

Legal scholar Marc Galanter (creator of the phrases “repeat player” and “one-shotter”) suggests that an RP will wield significantly large edges over an OS. “… Repeat players can structure the law at the outset… [They] usually have hired or retained lawyers, and so their start-up costs of litigating are minimal.” A credit card company, for example, will offer a consumer a contract and that contract is seldom renegotiated (or renegotiable), giving that company a distinct advantage over delinquent debtors. These types of clear legal obligations explain the large number of defendant resignation leading to defaults, both in the CGDC and nationally. The repeat players are also involved in litigation so often that they can dedicate resources to minimize the costs of taking small claims to court.[2] In recent years, debt-collection companies such as Asset Acceptance have begun to dominate the RP versus OS process, their revenue almost entirely generated by lawsuits. This requires them to maintain the capacity to litigate successfully at a low cost; in 2004, Asset’s expenses were 2 cents per dollar of debt collected.[3]

Because few of the cases required judge-party interaction beyond the transfer of paperwork, there was only minimal evidence to gauge the Judge’s courtroom behavior. To place her actions in context, due to the missing judge, the CDGC’s small-claims division was backlogged with work and was under pressure to finish its weekly caseload. In the single case that moved to trial, she grew impatient and brusque with the informally-dressed plaintiff while he was explaining the disputed issue at hand. As he approached the bench to show her a document, Schwartz immediately rebuffed him and told him to return to the podium, promptly informing him, “this is not a trial.” She inquired into the reasons as to why the plaintiff refused to accept a settlement, and he contended that the invoice of the charge he owed was filed to his name instead of his company’s name, a reason she likely perceived to be an inane distinction when she asked, “But do you have the money to pay him?” the plaintiff did not give a direct answer, insisting on his invoice claim and a movement to trial. Schwartz, not appearing very pleased with him, curtly replied, “This is too much for me to try today, so I’m not going to do it,” and told them to schedule a trial with her clerk. Clearly, the judge was actively participating by pursuing a settlement between the two parties by referring them to mediation, probing into the failure to settle, and even becoming agitated at his insistence on trial. Though this exchange appeared to be straight from “Judge Judy,” it did not mean that she failed to move through the few other cases quickly, professionally, and effectively without occasion. It is also notable that the court staff was very helpful in assisting my research, and, despite the work to be done, I was permitted to speak with the Judge in her chambers. Overall, the court was effective in its business but informal in its communication, as demonstrated by the interpersonal interaction in the courtroom between attorneys and staff, and the general willingness to help the petty research of an undergraduate student.

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