In his 1913 essay on “The Administration of Justice in the Modern City,” Harvard Law School Dean Roscoe Pound put forth a novel notion – a small claims or “people’s court” to “provide for disposing quickly, inexpensively, and justly of the litigation of the poor, for the collection of debts in a shifting population, and for the great volume of small controversies which busy, crowded population, diversified in race and language necessarily engenders.” So it was that small claims court came to be.
In 2010, over 88,000 small claims cases were filed in Massachusetts up to the legal limit of $7,000.
Back in 2006, Lynda Connolly, the chief justice of the district court, where small claims are heard, appointed a “working group” to determine whether there needed to be changes in the way small claims are handled. One of the big complaints was that the system heavily favored plaintiffs represented by large collections law firms against low-income defendants who could not afford a lawyer. The group came up with 14 recommended changes, most of which were implemented in 2009.
Now, for example, business plaintiffs must document defendant addresses to avoid default by the defendants; those who are trying to collect debts they have purchased from someone else must provide more detailed information about the debts; and all plaintiffs must provide an itemization of the total amount being sought.
Three clerk magistrates who hear small claims – Kathleen McKeon from Woburn District Court, Michael Prosser from Worcester District Court, and Wendy Wilton from Ayer District Court – said everything is humming along fine. “We have seen vast improvements in how well small claims is working,” Prosser says. His colleagues at the table agreed. Not one of them could come up with one single negative thing to say about the new small claims process.
But a lawyer who works for The Legal Services Center at Harvard Law School paints a less rosy picture. Roger Bertling and his students at the center defend low-income clients against unlawful debt collection.
“Not really,” Bertling says when asked whether all the rule changes in small claims court have had any impact. “They helped some, but the major imbalance still persists. I’m not sure that anyone is doing much to enforce the new rules. The defendant is at the whimsy of the court and at the whimsy of the lawyer on the other side.”
Bertling says that most people are afraid to death when they go to court. “Even in small claims court, they have no idea what they’re doing,” he notes, adding that many of the small claims courts do little or nothing to assist defendants who are in court “up against an attorney who is a frequent player, who knows the system, who knows how to talk to people to get them to do what he wants them to do.”
According to Bertling, some of the small claims courts tell defendants, “Go down the hallway, sit there, and wait to talk to the other side’s attorney.” It’s not uncommon, he says, for the defendants to think that the attorney actually works for the court. “It’s just generally some guy or woman in a suit,” he says.
Joanna Allison, a lawyer for the Volunteer Lawyers Project, says: “These lawyers for the creditors are friends with the court personnel because they’re there all the time. I’m sure they don’t go out drinking together, but they know them. So there’s the, ‘Hey buddy, how ya doin’?’ type of thing going on. This can make defendants feel like they’ve already lost.”
Most defendants are usually eager to make a deal because they have to get back to work. “There’s a very strong coercive power in small claims court in that regard because you come in as a defendant and there’s a hundred other people there who are ahead of you,” Bertling says. “So the wait is long. And you’re getting paid by the hour or you risk losing your job if you’re there all day. And you have no direction from anyone how long is this going to take, who else you can talk to, what you can do.”
At a small claims session at the Boston Municipal Court presided over by Patrick Mullaney and George Shea, the overwhelming majority of defendants didn’t show up and were defaulted. There was one trial that took place that Mullaney handled fairly.
But out in the hallway lawyers were telling defendants to fill out a financial form, never telling them that they don’t have to do it, nor that certain sources of income such as Social Security and SSI do not have to be used to pay off a debt. The defendants then signed the agreements and Mullany rubber-stamped them. This scenario plays out in other courts as well.
“I fill out the financial form for them,” one lawyer told me, “so that they can’t monkey around with the numbers.”