How to Deal with the Judge of Your Small Claims Case - dummies

How to Deal with the Judge of Your Small Claims Case

By Judge Philip Straniere

All judges take their jobs very seriously, even in small claims court. They realize how they treat you as a litigant affects how you’ll view the law and the fairness of the judicial system. Because the judge takes his job seriously, you would be wise to do the same, even if the judge is someone you know personally.

Who will hear your case

Who will hear your case, a judge or someone else? As with many things in court, the answer is, “It depends.” The answer varies from state to state. There are several possibilities, including:

  • A judge: In most states, an actual judge presides over small claims court. This is good, because a judge knows the law. This also is not good, because the judge knows the law. So the judge may be less likely to abandon legal rules of evidence and prior case law. This assumes that the judge has not only been trained as a lawyer but is a judge.

  • A lawyer: In some courts, the small claims judge is actually a lawyer volunteering his services to the court system so that the small claims court runs efficiently. This person will have knowledge of the law but may not be up on all the niceties and nuances that the full-time judge would have.

    The fact that someone is a lawyer doesn’t mean he has any courtroom experience. A lawyer whose practice is patent law may never set foot in a courtroom except to volunteer to help out in small claims court.

  • A citizen trained by the court: In some places, the small-claims judge may be plain old Joe Citizen with no legal training other than what was provided by the court system as the minimum training for judges. A citizen-judge is more likely to apply good old common sense to your case and very little law — which may or may not be to your benefit.

How to request a judge

In places where there is an option to have the small claims cases heard either by a professional judge or by an arbitrator or magistrate who is not a professional judge, each party has the opportunity and right to request that the professional judge hear the case.

You may be able to designate that you want an actual judge to hear your case when you file your complaint or, if you’re the defendant, when you file your answer.

In those places where you can’t designate a trial before a judge prior to the trial date, yell “By the Court” or “By the Judge” when your case is called. Your case will then be directed to the judge to be heard.

Asking for a judge comes with one distinct disadvantage: Your case may not be heard at that small claims session. The judge can only hear a certain amount of cases each small claims session and that number is not known until the calendar is called.

How to ask for a judge to be removed

The situation may arise in which either you or the defendant knows the judge from outside the court.

If you or the defendant feel you can’t get a fair trial you can ask the judge to recuse himself, or voluntarily step down and not hear the case.

Reasons for recusal

Some of the reasons you may think the judge should recuse himself include:

  • The fact that the judge ruled against you in another case.

  • The fact that you just heard the judge decide a case similar to yours in favor of the defendant.

  • The fact that the judge has some personal connection with you or the defendant. Perhaps your kids go to the same school or play on the same team. You all attend the same religious institution.

But guess what, none of these reasons requires the judge to step down. Absent certain limited circumstances, in most states the decision to stay on the case is left solely to the discretion of the judge.

In some situations, the judge automatically has to recuse himself from the case. If either party before the judge includes one of the following relationships, the judge must step down:

  • Blood relative

  • Former client

  • Former or current law partner or business associate

In these rather obvious cases, the judge should automatically speak up and send the case somewhere else. But these exceptions are rare.

When a judge refuses recusal

In many cases, you can ask the judge to recuse himself, but your request will be denied. The idea is to prevent litigants from judge shopping. If you could get a judge to recuse himself just for the asking, anytime you didn’t like the judge, you’d ask him to step down. A system like that would cause chaos.

Besides, what are you going to do in a small community where everyone knows each other? There may not be another judge available locally which would mean you’re schlepping to the next county for trial.

If you genuinely feel you have a legitimate issue with the judge and that the judge should step down, notify the clerk of the court and your opponent in advance so that the case can be reassigned to another judge, if there’s more than one, or transferred to another location. Getting the case reassigned in advance saves you the trouble of asking for a recusal when your case is called.

State your reasons for recusal in a calm, nonconfrontational manner. If the judge denies your request, accept the ruling and move on. Complaining will get you nowhere and can hurt your case.

Although judges are used to being asked to recuse themselves on occasion, no one wants to be accused of being unfair, especially in the courtroom. Raising the issue with the clerk or some other court staff, rather than the judge, prevents the request from becoming an incident.