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Blog & News

February 7, 2010

Ask the Attorney

Filed under: Columns from Our Towne Magazine, Contracts, Small Claims Court — Paul Czech & Associates @ 4:07 pm

This being my first column of 2010, I thought it would be best to stay away from my usual essays about nothing in particular and actually write about  something related to the law.   So here we go.

Some months back, I wrote about a question that I received from a musician who wanted to know if it would be helpful to have a contract with a club owner every time they get booked to perform somewhere.  I advised that it would likely not be advantageous since the amounts most artists get paid for a gig (anywhere from $50 to $200) were too small to merit the expense of enforcing the contract in a court of law.  In my analysis in support of my advice, I factored in the expense of hiring an attorney to handle the case as it made its way through the local small claims court.

Of course, if you can believe it, that got someone’s dander up.  A reader contacted me to advise that he was concerned that my advice was self serving to me since I failed to mention that anyone can take their case to small claims court and they didn’t need a lawyer since they could represent themselves.  Although this reader misconstrued my column (I didn’t say you had to have a lawyer in small claims court – I stated that musician clients had come to me in the past to request such representation), it made me wonder if something I wrote in that column was confusing in some way.  The person who complained was so angry at what I wrote that they initiated an investigation and filed a formal complaint with the Disciplinary Board in an effort to have my license to practice law taken from me (fortunately, those efforts failed).  So I wrote in a follow-up column that small claims court is designed for pro se claimants  (claimants acting as their own attorneys) and that small claims court is designed to be “user friendly” for those that want to go it alone.

And, of course, my clarification prompted another reader to get in touch with me (so I know there are at least two of you who read this stuff!).   This time, however, the approach was not a hostile one.   This nice woman wrote to tell me about her experience handling her own case in small claims court along with her husband.  Even though they prevailed in their claim and that I was indeed correct about being able to rep yourself in that court, neither she nor her husband would ever want to repeat the experience without having a lawyer  acting on their behalf.  They experienced curt and unfriendly court personnel who proved completely useless when it came to helping them file their claim with the court.  Once trial time came, things did not get better.  The experience of going before the Judge to argue their case was an uncomfortable one for these two who did not appreciate the Judge’s gruff attitude toward them or his friendly demeanor to their opponent.   Given the experience she described, I can understand how even a win couldn’t wash the bad taste of that day in court away for these nice people.

Now before someone else gets upset, I want to say that not everyone has the same experiences.  Clearly, many people over the years have tried their own small claims actions and have lived to tell about it.  And probably just as many people have gotten a lawyer to handle their action for them and have lost since, as we are all aware, simply having a lawyer with you doesn’t mean you are going to win.   All of this really just points to the fact that going to court, regardless of who goes there and how skilled they are, is nothing more then a gamble akin to playing blackjack at your favorite casino.  Just like with gambling, to maximize your chances of winning in court, you have to do something to make the odds more favorable to you and your side.  By understanding the applicable law, knowing the facts of your case intimately, and presenting your evidence to the court in a way that makes them see things the way you do, you can diminish the unfavorable odds against you significantly.  Hiring an attorney who is experienced in the courtroom can reduce those unfavorable odds even further.  Yet none of this can guarantee you will win.  The winner is chosen by the judge which means that ultimately, whether you win or lose is entirely in their hands.   So it’s the merits or the strength of your case that truly matter here.  Which means that maybe you should go and consult with a lawyer before you run into court and file your complaint by way of trying to find out how strong a case you have, or, if you even have a case at all.  This is, of course, not required but it may prove to be helpful when you’re trying to shift the odds as I mention above.  Only you can decide how important your claim is to you and only you can determine how much money your willing to spend on the gamble.

I’d like to hear about more of your small claims court experiences whether they were good ones or bad ones.  So, if you’re so inclined, why not send me an email and tell me about them?   If I get enough stories from you, I’ll write another column about small claims court and share them.   And if I don’t hear from anyone, well, then…enough said about this already, right?

-Paul Czech,Esq.

February Edition of Rensselaer ‘Our Towne’ magazine

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