Beware Small Claims Judges Bias

“The hearing and disposition of all cases shall be informal, the sole object being to dispense justice promptly and economically between the litigants. The parties shall have the privilege of offering evidence and testimony of witnesses at the hearing. The judge may informally consult witnesses or otherwise investigate the controversy and give judgment or make such orders as the judge deems to be right, just and equitable for the disposition of the controversy.” ORS 46.415(3)

This is the written purpose of Small Claims court in Oregon.  I thought it might be useful to review the law on small claims courts and discuss what the true expectation a creditor can have when appearing in a local court.  Let me start off by stating most small claims cases are heard by judges Pro-Tem, who are not “real” Circuit Court judges but lawyers who volunteer for this work.  If you are fortunate enough to have an actual Circuit Court judge hear your case, you may disregard all of the following.

Many of the attorneys who volunteer for judge pro-tem make their living as trial lawyers suing businesses, doctors, insurance companies, and other medical providers.  Trust me when I say they have a negative bias against the health care profession, creditors, and collectors. Most of the reasonable and fair-minded judges cannot hear our cases as they dismiss themselves due to conflicts of interest.  (We have worked for many lawyers and law firms in the area who still expect to be paid for their services.)

This is a two-edged sword for us, as it limits the pool of potential pro-tems to the trial lawyers, but also grants us a few more hearings in front of the “real” judges.  So, what can a creditor expect in front of one of these “biased” pro-tems?  Based on the past four or five years of appearances in local southern Oregon court rooms dozens of times, the trend is getting more and more toward a bias against creditors.

Start with a snarky attitude.  In the past two years, we have seen pro-tems lecture us and our clients (appearing as witnesses) on everything from basic business services to contract law to fairness and what they would do.  I don’t see anything in ORS 46 about the judge getting on their Crusader soap-box and lecturing the plaintiff about their business practices.  Yet it happens almost every time we appear in court, either to us or other creditors in court. It is unnecessary, unprofessional, and without basis in law or fact.  How these lawyers know how to run all these different businesses is beyond me, but they apparently are geniuses in every aspect of business and medicine, according to themselves.

Secondly, the creditors required burden of proof will exceed the normal view of evidence.  Written documents, itemized statements, signed contracts, and witness testimony all will be ignored if the judge wants to.  And they frequently do. Recently, we had a judge state he was finding on our behalf, because we had all the evidence and the defendant even admitted owing the bill, but he cut the award in half because he “felt sorry” for the defendant.  These lawyers NEVER feel sorry for the creditors who do the work, pay their bills, pay their staff, pay their taxes, and then have to watch their former customer drive off in nice cars with a drive-through coffee in one hand a cell phone in the other, while headed to the mall or nearest gaming facility. “Fairness” is in the eye of the beholder.

Third, do not expect anything close to true fairness.  After the pro-tem does their very best imitation of the defendant’s attorney, after they lecture the creditors about business practices they absolutely know nothing about, and after they make several smarmy comments about greed or fairness, expect them to look at all the evidence and ignore it.  They will rule according to how they feel about the case.  And how they feel about it was decided long before you showed up in court that day.  They have a bias against businesses, against the medical profession, against insurance companies, and in favor of anyone they can determine is a victim in their eyes and can pick up their cause.

Fourth: the defendant can get a reset any time they want for any reason whatsoever.  The plaintiff will not get one even if they did not receive notice of a trial.  This is a true story for us.  We lost a case because the court granted the defendant a reset of the trial date THREE times, twice after we had appeared.  The third time we never received the notice from the court for the trial date, and the judge found in favor of the defendant since we did not show up.  The presiding judge would not overturn the ruling.  There are no appeals in small claims court, and there is no equitable treatment either.  A defendant got a reset the other day by stating to the judge he wasn’t ready.  We were ready.  Legal service was done.  We had our client there as a witness, who had to arrange to be away from work for several hours.  Doesn’t matter.  Bias against creditors is the rule, and the exception is a fairness in judging cases.

What can be done about it?  Very little, I’m afraid.  When we encounter very egregious cases of bias, we will file a motion with the courts and ask that judge no longer be able to hear our cases.  Sometimes it’s granted, sometimes it isn’t.  But that won’t change their mind or any of their previous rulings. These pro-tems do not believe in the legal concept of quantum merowit, the idea you cannot get something for nothing.  They let debtors walk away after receiving goods and services (many times after the debtor ADMITS they owe the bill!) without having any financial obligation whatsoever.  And then lecturing our staff and clients that there has to be a written contract for everything.  Well, that’s not really the law, except in their eyes and their court rooms.

Is this just sour grapes on our part due to a couple of cases we lost and thought we should have won?  Not even remotely true.  We have lost cases we felt we had the correct evidence and should have won, but also saw what the judge was looking at and understood.  We may not agree, but we understood.  (See again, “Real Circuit Court Judges”).  This is about a pervasive and prevailing attitude of bias and pompous attitudes that permeates the pro-tem benches in southern Oregon.  We simply no longer expect a fair or reasonable outcome in front of one of these judges.

It is unfortunate, but we are taking more cases to Circuit Court now.  This means more costs to the debtors, longer times getting recovery, and more cases in the court system that should be going through small claims.  The only real solace we get from this is many of these pro-tems have to deal with us and our clients when they represent people against medical providers and insurance companies.  Then they ask for a favor and want to pay a small fraction of what’s owed.  Funny how they expect to be paid their full fee when asking for others to take a pay cut, isn’t it?

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