One of the most noticeable challenges, particularly to the unwary, is that small claims actions differ markedly from their superior court counterparts.
The rules of evidence are relaxed, the process moves comparatively quickly, and the action, if left unattended, will likely proceed swiftly to trial. Most noticeably, the parties in court are often the claimants or defendants themselves.
Articling students, who are more likely to represent insurance companies or larger organizations, must learn to interact co-operatively with opposing parties. In this court, your learned friend is usually a self-represented litigant.
For these and other reasons, small claims offer many challenges. The reward however, is the opportunity to practise and hone advocacy skills early in one’s career. This article will offer guidance to the articling student by looking to common mistakes in small claims and by providing tips for effective advocacy in this unique area of the law.
Lesson 1: Don’t beat down a partner’s door if you don’t have to
No matter how many years one spends in law school, when articling begins, it is a start from scratch. Odds are, if you have carriage of a small claims file, it was passed to you by a partner or senior associate with the instructions: “Here’s the file, the defence is due in a week, good luck.”
If it’s your first small claim, you’ll likely, after the partner departs, throw your hands up in the air and wish you’d accepted that master’s program in law. But worry not. There is sage advice that has been passed on from generation to generation of articling students. Simply put, and unwelcomingly received, that advice is: “It is all in the rules.” It is.
The small claims court rules contain step-by-step charts for every aspect of an action. If an answer remains elusive, the small claims court web sites in most jurisdictions contain simple and plain-language explanations of everything from how to file a defence to how to summon a witness.
If the answer still evades you, the best resources for a solution are the small claims court clerks. These dedicated individuals handle small claims court files on a daily basis. They know the rules and know what their court’s practice is for interpreting those rules.
Take for example, a situation where you have been asked to defend a claim. The rules say you can file a defence. So you diligently bind the documents and send them off to the court, having followed the rules. But some courts despise clear Mylar covers, or Cerloxed documents, and others require back sheets on all filed materials. Knowing the practice of the individual court can go a long way to pleasing the clerks, impressing the judge, and improving your service to the client.
The worst-case scenario is not taking the time to know the rules — filing incorrect documents or worse yet, missing a deadline. A small claims court judge will, more often than not, be lenient to an unrepresented litigant but will be quick to chastise counsel. It was once said that, for the purposes of small claims, particularly in comparison to an unrepresented litigant, the articling student is treated with the expectations the House of Lords would have of a learned QC.
Lesson 2: Always ‘govern yourself accordingly,’ but never say the phrase
Chances are, if you are articling for a firm, you have the resources to plead with the professionalism and organization of a lawyer. There is, however, nothing more unwelcome than complicating things. Judges and opposing parties, unrepresented or not, very much appreciate organized documents. This means that to be effective, it helps to prepare settlement conference and trial briefs. Bind the pleadings and the evidence where possible and tab separate documents so they can be referred to easily and efficiently at court or in a settlement conference.
Judges in small claims prefer a summary of the facts and the arguments that they can read prior to a court appearance. It speeds up the process, clarifies your position, and gives an advantage to your client.
But by no means use legal diction. Speak plainly. Judges have been known to comment that they all-too-often hear terms such as “vehicle” or “automobile” but, in their many years on the bench, have never heard of a car referred to as a car.
Most importantly, never take advantage of your “learned” position. Unrepresentative litigants, nine times out of 10, will rightfully get the enhanced protection of the court. So, when at trial, an unrepresented litigant blatantly introduces hearsay evidence, consider your response. It is almost too easy to rise to your feet, remembering second-year evidence law, and in an anxious fashion blurt out an objection. Though you might be right, you won’t likely score any points, and either way the judge has already heard the evidence.
More often than not, battles in small claims are won in contemplative silence from the seat of one’s chair than by wearing out the podium with one’s fists in strenuous objection.
Lesson 3: Learn the right balance
One of the toughest challenges of managing small claims files is balancing them with the other various assignments you will receive from associates and partners while articling. Seeking balance is a tough task. You will often be handed an assignment from a partner with a deadline “two weeks ago last Thursday.” It is easy to lose track of the small claims bellows tucked away in your bureau. But where deadlines loom in other matters, it is important to recall that for small claims, you hold the reins and your client looks to you to help them directly.
It is not easy to say no to a partner or an associate asking you to do a last-minute assignment, particularly when the assignment involves a million-dollar lawsuit and you are worried about the pressures of seeking employment come the expiration of your 10-month term. However, it is much easier to say no to a partner with an explanation than it is to stand in court before a judge and next to your client, unprepared, where no excuse will suffice.
In articling, seeking balance is as easy as getting nine hours of sleep per night and going home on weekends. But keeping the dust off the small claims file on your shelf is the first step in learning how to run a successful practice, and in learning how to keep a dust-free shelf.
The trial lawyer is not dead
Time and time again, in articles, we are told that the traditional trial is dead, and indeed, in superior court actions, it seldom occurs. More often than not, and usually for the better, civil actions settle. Nowadays, the skills of the advocate must be diverse in order to respond to the demands of non-traditional advocacy. Small claims court practice teaches traditional and non-traditional advocacy at the outset of one’s legal career. Articling students interact with clients, file pleadings, question witnesses, assess the evidence, form legal arguments, attend mediations, and participate in settlement conferences, motions, and trials.
With the scope of small claims expanding, and revisions to the small claims court rules in various jurisdictions, the opportunities for advocacy and mentorship are ever more present. Small claims judges have been known, when asked for feedback, to call students into their offices and impart years of wisdom (some judges with more painful wisdom than others). Even partners or senior counsel are all the more willing when asked, from time to time, to serve as juniors to the articling student at trial, and to pass along sage words of advice to the weary pupil.
Small claims offer diversity and an array of challenges in an expanding practice area. If ever there was a place to forge one’s skills as an advocate, it is most certainly in the crucible of the small claims court.
John-Andrew Pankiw-Petty is an articling student in the Ottawa office of Borden Ladner Gervais LLP. He recently graduated from the University of Windsor’s faculty of law. Prior to joining BLG, Pankiw-Petty served as special assistant to Peter Milliken, speaker of the House of Commons.