Utah Bar Journal

Sabey: I first applied to become a small claims judge in 1994. I was practicing in Murray at the time, and the senior partner of my firm recommended that I serve. He advised me of the benefits to be gained from serving: getting to know the judges better; seeing how effective - or ineffective - different styles of presentation could be; seeing what resulted from bad - or no - witness preparation; getting more comfortable with the courtroom process and why things worked or didn't work. All of my partners either had served or were serving as small claims judges, and it was expected that firm members would give back to the community through such service. So I filled out an application and sent it in. About a week later, the clerk at the Murray Circuit Court called to ask if I could sit that night as small claims judge. I told her I had no experience, I had no idea what to do, and I hadn't even been to a small claims proceeding to watch. She said, "No problem". In a very soothing tone she told me how easy it was, I would be just fine, and the night clerk would help me through it. That should have been my warning. That first night I had a plaintiff who was infamous with the clerks. It was baptism by fire - especially when I ruled against him. Two days later I was sitting in the West Valley City court (word of new blood spread quickly between the clerks in the different courts), and the same fellow walked in again. I tried to recuse myself, but for some reason he still wanted me to hear the case.

Shea: The amount recoverable in a small claims action has grown over the years, from $50 in 1933 to $7,500 today.2 The filing fee has increased as well, from $1 in 1933 to either $45 or $70 (depending on the amount of the claim) today.3 When adjusted for inflation small claims is still a bargain, although both the filing fee and the jurisdictional limit far exceed the inflation rate. General price inflation since 1933 is a mere 1,462%.4 The small claims filing fee has climbed at 7,000%, but the amount recoverable has more than doubled that rate. Looked at another way, if a dollar could buy $50 worth of justice in 1933, that inflated dollar today can buy $1,500 and change. Still a bargain. Even time is subject to inflation. The original Small Claims Act required a trial within five days after the filing; now it's 45 days.5 Small claims are still quick; that's an inflation rate of only 900%.

Sabey: Each city handled its small claims cases differently. Sandy was notorious because it would call a pro tempore judge only twice a year, but on those nights it was not uncommon to sit until 10:00 or 11:00 at night. Murray would often run three courts simultaneously, but would not have enough bailiffs to cover the courthouse. The system lacked continuity in its rulings and its application of the law, but for all of its informality, it provided a good service.

Shea: The original act permitted counterclaims, but had no deadline for them. For a time, the defendant could file a counterclaim as late as two days before the trial, which put the trial off for at least 10 days.6 Now the deadline for a counterclaim is a more reasonable 15 days before the trial, and the trial date stays put.7 Although counterclaims have been permitted since the original 1933 act, clerks must have found themselves in need of a counterclaim form because 50 years later the Code was amended to specify the form to use.8 Until relatively recently the Legislature specified all of the small claims forms. As bad as formbooks are, they are at least a better vehicle for forms than the Code. The statutory forms were finally repealed in 1991.9

Sabey: At that time, a set of rules and procedures for small claims had not yet been promulgated, even though small claims had been filed for many decades. The only procedures were those written on the backs of the forms and whatever handouts clerks in different cities had prepared for the parties and the small claims judges.

Shea: The courts have long provided forms for the parties to use. They, like everything else, have changed over the years, but they remain simple: Who are you? Who are you suing? Why does s/he owe you money? How much? The instructions on the back of each form were once considered the "simplified rules of procedure and evidence" anticipated in the Code.10 "Insufficient," said the Supreme Court.11 The Court then adopted the Rules of Small Claims Procedure in 2001. In addition to the paper forms, there is now a substantial presence on the judiciary's website with instructions (English and Spanish), forms, statutes, and rules.12

Sabey: Chief Justice Richard Howe was approached with suggestions for changes to the system. He appointed a rules committee chaired by Judge Robin Reese to examine each rule and procedure. While small claims had been in place for a long time, no one had made a detailed examination of what should be their unique rules and procedures. Should discovery be allowed? What would that do to a pro se party? Should it be formal or informal discovery? Should the rules of evidence apply? Should a defendant be able to force a small claims plaintiff into a higher court by filing a counterclaim that exceeded the jurisdictional limit of small claims? Should the district court use small claims procedures on appeal? Should the parties be allowed discovery on appeal if it was denied before the original trial?

Peggy Gentles, now trial court executive for the Third District Court, drafted and re-drafted the Rules of Small Claims Procedure, which were adopted by the Utah Supreme Court in 2001 and then re-evaluated after being in place for about two years.

There are still issues to be worked out, like: "How far do you extend non-attorney representation when weighed against the unauthorized practice of law concerns"? And "What is the form for a supersedeas bond"? Now, however, such issues can be addressed in an organized fashion through the Supreme Court's standing committee on the Rules of Civil Procedure.

Shea: The subject matter for small claims has always been money damages, but the courts (including justice court and city court) in which small claims were filed could hear any civil action for money (not just small claims), up to their jurisdictional limits, which were different from the small claims limits. When the small claims limit reached the magic $1,000 mark, justice court monetary jurisdiction was coextensive with small claims.13 However, justice court subject matter jurisdiction extended to other case types until 1989.14 After that year the justice court could hear only small claims cases; before that the justice court could hear any action for money, possession of personal property, enforcement of liens, and landlord-tenant, among others.15

Sabey: Because of a concern over access to justice for the average citizen, in 2003 the Legislature considered increasing the jurisdictional limit from $5,000 to $20,000. The Access to Justice Task Force was formed, chaired by President-elect George Daines, to examine the issue. Representatives and a senator participated on that task force and eventually reached a compromise to increase the jurisdictional limit to $7,500.

Shea: The nature of the monetary damages does not matter. The action might be in tort or contract or any other claim for monetary damages. The claim might be for general or special or even punitive damages. All are permitted.16

Sabey: In 2000 the Supreme Court issued its decision on the small claims case of Kawamato v. Fratto. Among other things, that case held that small claims courts could hear claims for any damages that could be reduced to a dollar figure, whether those damages were for a dented bumper or punitive damages for intentional infliction of emotional distress.

Within a couple of weeks of that decision, I had a meeting with the Supreme Court where I cried that the ruling would open the floodgates of litigation. Of course they were not persuaded by my argument, and in the end I was proven wrong. However I felt somewhat vindicated when, just two days after that meeting, I was presiding at a small claims trial and two attorneys, with medical records about eight inches thick and a doctor as an expert witness, came into court to plead their case. I felt compelled to ask the attorneys to approach the bench so I could ask how they could afford to put on such a case in small claims with a $5,000 limit.

Shea: At the start, the small claims court was a special department of the justice's courts and city courts. The small claims department remained when the circuit court replaced the city court in 1977, and when the circuit courts merged into the district courts in 1991/96. Although denominated for decades in statute as a "court," and still called that in the vernacular, small claims has never been a separate court. Small claims are civil actions for money for which there are simplified procedures. This was recognized by statute in 1997.17

Sabey: In 1996 the circuit courts were dissolved. One of the problems in doing away with the circuit courts was that the circuit court rules provided that small claims (which were under its jurisdiction) were not courts of record. Of course district courts are courts of record. Since small claims were not specifically addressed in the legislation, moving small claims into district court made them courts of record. That was an unintended consequence that took almost six months to fix.

Shea: Our state constitution gives every litigant the right to appeal.18 Small claims are no exception. Originally only the defendant could appeal a small claims judgment; the plaintiff could appeal only if the defendant had filed a counterclaim.19 This changed in 1988 to allow either party to appeal.20 From justice court, a party appealed to the circuit court (now the district court) for a trial de novo. For a short - a very short - time in 1987, a party appealed from the original trial in the circuit court to the new Court of Appeals for review of the record for error, just as in a traditional appeal.21 (Although small claims were not courts of record, there was an audio record of small claims trials in circuit court.) That experiment having failed as badly as cold fusion, the system quickly went back to trials de novo.22

With the higher jurisdictional limit we are seeing more lawyers in small claims cases, but still relatively few. Those who need help in presenting or defending their case have several options. Employees of a party have been able to represent the party since 1961.23 Written to enable a business, corporate or otherwise, to send the accountant or some other employee to the small claims trial, the law's scope was potentially much broader. Could I, for example, as an individual, hire someone, making them my employee, to represent me in a small claims case? Never raised, the issue is probably moot since just about anyone can now represent just about anyone else in small claims, provided the judge approves and the representative is not paid.24

Sabey: Part of the struggle for the Access to Justice Task Force was balancing the need for greater access to the courts against protecting the public from those only posing as attorneys, "para-attorneys," or notarios and the unauthorized practice of law. Even the legislators pressing for change recognized the problem. The Supreme Court's decision, allowing uncompensated, non-lawyer representation at the judge's discretion, provides sufficient screening to allow for the help of family and friends while blocking those who seek to illegally profit from the court's participants. And, since small claims judges had allowed parents, spouses, or even friends to speak for a party, at least when it was clear that that was the only way to present a coherent case, the amended rule reflects what was a relatively common practice.

Shea: We often equate small claims and judges pro tempore, but the practice of appointing volunteer lawyers to judge small claims cases was not authorized by statute until 1981,25 and even now judges pro tempore operate in only about a dozen courthouses. Initially, the statute tied the use of judges pro tempore to the need for evening hours. As if regular judges lost their powers after 5:00 p.m. or, like vampires, judges pro tempore could not come out before dark. That standard probably was not difficult to meet, but it was not until 1991 that the Legislature removed the "necessity" of evening hours as a condition for using judges pro tempore.26

The district courts in Second, Third and Fourth Districts use judges pro tempore for their small claims cases. Salt Lake City Justice Court and Washington County Justice Court do so as well. Murray City Justice Court has one judge pro tempore. There is a bit of irony in that judges pro tempore in the justice courts have to be lawyers, while the regularly appointed judges cannot be required to be lawyers, although several are.

Sabey: Diane Cowdrey and Polly Schnaper of the Administrative Office of the Courts have taken up the task of holding small claims judges' classes in Ogden, Salt Lake, Provo, and St. George, and finding presenters like Pat Christensen, of Parr, Waddoups, Brown, Gee & Loveless, who have the expertise to teach, and are gracious enough to donate time to the effort. Brent Johnson, General Counsel with the AOC, regularly attends those classes and teaches judicial ethics and courtroom demeanor. Tim Shea has created a special web page, just for small claims judges, that contains case law, rules of procedure, forms, a bench book, and a bulletin board for judges to stay in communication with other judges. As a result of all these efforts the continuity of procedures and rulings statewide has substantially increased.

Shea: Many of the attorneys who volunteer to serve as pro tempore judges have done so for many, many years. To those and to those of shorter tenure the judiciary owes an enormous debt of gratitude. About 130 of them, more or less, at any given time. Collectively these lawyers donate thousands of hours every year. Who appears before them? Small claims court is in part a collections court; there's no doubt of that. In many cases, the small claims affidavit is merely the final dunning letter. There are, however, no claims by assignees.27 Bill collectors buy debts and periodically try to collect them in small claims, but they should be politely pointed towards the regular civil docket of the district court. Run-of-the-mill people still predominate. Minor accidents, bad checks, consumer credit, auto repairs, earnest money agreements; the judge sees it all.

Sabey: In the end, the program flies or dies on the good will and generous contributions of our colleagues in the profession. The frequency and duration of the evenings that judges serve are now shorter, and the process better organized. The clerks are wonderful, hard working and get training specifically for small claims. They know the rules and procedures better than most judges and are a big help. But all the work of the courts would achieve little without people who, after a hard day of billable hours, are willing to donate a few more hours to provide this invaluable public service.

It is a great opportunity to serve and a forum in which you can learn a great deal while serving. More than once I have sat at trial and watched a style of presentation that, as an advocate, I considered effective, but which, from the judge's perspective, was a disaster. Much of our daily work may be esoteric, but small claims judging is a very immediate, visceral and real experience. The parties need our help, here and now, on issues that are important to their daily lives. We need your help. Come on in, the water's fine!

Shea: There have been a lot of changes to small claims law in almost 75 years, but despite all of the changes, one thing has remained the same. The "sole object" of small claims has remained constant: "dispensing speedy justice between the parties."28

1. Laws of Utah 1933, Chapter 16.
2. Laws 2004, Ch 204.
3. Utah Code ¤78-7-35.
4. http://inflationdata.com/inflation/.
5. Laws 1933, Ch 16, ¤4; Rule of Small Claims Procedure 4.
6. Laws 1986, Ch 187, ¤3.
7. Rule of Small Claims Procedure 4.
8. Laws 1983, Ch 77, ¤2.
9. Laws 1991, Ch 268.
10. Section 78-6-1(7).
11. Kawamoto v. Fratto, 2000 UT 6; 994 P.2d 187 ¦¦11-13.
12. http://www.utcourts.gov/howto/smallclaims/.
13. Laws 1986, Ch. 187.
14. Laws 1989, Ch 157, ¤13.
15. ¤78-5-2(1988).
16. Kawamoto v. Fratto, 2000 UT 6; 994 P.2d 187, ¦¦14-17; Kapetanov v. Small Claims Court, 659 P.2d 1049, 1051 (Utah 1983).
17. Laws 1997, Ch 215, ¤19.
18. Const Utah Art VIII, 5.
19. Laws 1933, Ch 16, ¤9.
20. Laws 1988, Ch 73, ¤1.
21. Laws 1986, Ch 47, ¤¤75, 76.
22. Laws 1988, Ch 73, ¤1.
23. Laws 1961, Ch 180, ¤1.
24. Rule of Small Claims Procedure 13.
25. Laws 1981, Ch. 88.
26. Laws 1991, Ch 268, ¤43.
27. Laws 1933, Ch 16, ¤6.
28. Laws 1933, Ch. 16, ¤8 and Utah Code ¤78-6-8(1) (2006)