THE SECURITY DEPOSIT:  USING IT, ACCOUNTING FOR IT, AND DEFENDING IT IN SMALL CLAIMS COURT

© Copyright  2001-2011  Landlord.com

PART THREE

HOW TO ACT IN COURT

            We should conclude with a discussion of how a courtroom works and how to act while you are in it.  Etiquette is an important thing, as you may be judged, in part, on your manners or your lack of them.  A respectful attitude is understood, beyond that you should have some grasp of how things work and how to get them to work for you.

            In small claims court, you will be confronted with three individuals who constitute the staff of the particular department you have been assigned.  These are the judge, the clerk, and the bailiff, or, in some cases, a court attendant.  In other types of cases there may be more personnel, but this is the usual complement for small claims court.

            The judge is the person who is putatively in charge of the whole show.  He has the inherent power to set the procedure by which his court will run, and can punish failure to comply with anything from a sharp word to a fine or imprisonment or both.  In small claims court you might get any one of three types of judge.  In many cases, the judge will be an actual sitting judge who routinely sits in a court of plenary jurisdiction.  This means he is invested by the state with the power to try all types of cases and takes an oath faithfully to perform his office.  He may regularly hear criminal cases, or civil cases, or both.  Typically, he is assigned a number of small claims cases in rotation with the rest of the judges in his judicial district or county.  He may be hearing small claims cases because another case he was regularly scheduled to hear ended early or will start late.  In any event, he is probably not thrilled to have a small claims calendar to deal with.  The second type of judge is a commissioner.  A commissioner (perhaps referred to as a magistrate or justice of the peace, depending on the jurisdiction) takes an oath similar to that of a judge, and sits regularly in various types of courts.  His duties are usually limited to things like traffic court, motions in regular civil cases, and small claims.  He is paid less than a regular judge is and his job is to free the judges to handle trials.  The third type of judge you are likely to encounter is a judge pro tempore.  He is a private citizen, almost always a lawyer, who has taken a special oath to act as a judge for that day.  In some programs he is paid and has attend special training courses, in others he is not and does it purely as a volunteer.  You must agree to have your case heard by a judge pro tempore.  If you refuse, your case will be put on hold and sent to the next available judge or commissioner, sometimes resulting in a postponement of the hearing.

            Regardless of which type of judge you are assigned to, you treat them the same and show the same deference.  In all cases, they are doing a difficult task to the best of their ability and can only do it if they can rely on your good faith efforts to work within the system which has been set up to give everyone a fair hearing.

            Some writers have asserted that you should never accept a judge pro tempore because they are usually lawyers whose primary area of practice might be outside the scope of the dispute you are presenting them.  This is only part of the truth and not necessarily good advice.  While it may certainly be true of a pro tempore judge, it is also likely to be true of a regular judge.  The governor usually initially appoints judges, and he appoints them because they are "tough on crime."  Most judges are appointed out of the District Attorney or Attorney General's office and have never tried a civil matter in their lives.  It is just as likely that you are presenting your matter to a person not particularly experienced in that sort of thing whether you are dealing with a regular judge or a judge pro tempore.  The judge pro tempore is sometimes a plus.  He is there because he wants to be there, he has volunteered.  Of the three types of judges you are likely to encounter, he is most likely to have extra time to take with your matter, if that is necessary.  We only recommend that you refuse a pro tempore judge if you know him personally, and in that case he will probably disqualify himself, or know something of him that makes him unsuitable and that you have heard from a credible source.

            The clerk is the person who runs the day to day operation of the court.  He handles the mail, ensures the right files are available when needed, manages the exhibits in the course of the trial, keeps the minutes of the trial, and controls the flow of paperwork to and from the judge.  The clerk is the one who will see to it that the judgment in your case accurately reflects what happened at the trial and that it is properly entered and the necessary notifications sent out.  Some say that the clerk is the one who is actually in charge.  In large measure this is correct.  A clerk who has developed a dislike for you can be as much trouble as a judge who has done so.  The clerk operates under the orders and supervision of the judge.

            The bailiff or court attendant is the person who is in charge of keeping order in the court and subduing any breaches of the peace which may erupt.  Bailiffs are sworn law enforcement officers, sheriffs or marshals, supplied for court duty by those offices.  Bailiff duty is generally considered a plum, reserved to those with outstanding records or high seniority.  Be nice to the bailiff.  What can we say, he's got a gun.  In some jurisdictions, bailiffs are being replaced by "court attendants."  Court attendants are not sworn law enforcement officers and are not armed.  Be nice to them anyway.  The bailiff/court attendant is the symbol of the court's power to enforce its decisions, but also a shield for the litigants so that they can present their cases with the confidence the other party will not resort to violence against them.  The bailiff also operates under the supervision of the judge.

COURTROOM ETIQUETTE

            Courtroom etiquette is nothing more than a set of standards of good manners, which are designed to facilitate the conduct of the court's business.  These standards also reflect a level of mutual respect, that of the litigants for the court personnel and that of the court personnel for the litigants.  All courtrooms are run according to the preferences of the judge.  Some are more formal than others are.  By observing the following suggestions, you will get along well in almost any courtroom.

            Do not argue.  This may seem strange advice, especially since TV and movie fiction has made court procedure seem like a sort of debate.  The truth is that nothing is further from the truth.  Engaging in a carping verbal war with your ex-tenant will only annoy the judge and induce him to cut everyone off.  Your object in this proceeding is not to convince the tenant, but to lay evidence supporting your position before the judge.  All the evidence should be addressed to him.  Never argue with the judge.  If he asks a question you think is irrelevant, answer it anyway.  He will eventually figure out that it was a dead end.  If a question is asked which you think might harm your case, answer it frankly and directly.  Do not fight the question.

            Talk to the judge.  The trial will be a serial dialogue, you with the judge and the tenant with the judge.  It must never be a dialog between you and the tenant with the judge as spectator.  The only exception to this is when you ask questions of the tenant or he of you, if the judge permits it.  In that case, make your questions and answers brief, direct, simple, and to the point.  Never try to frame an argument as a question.  This type of thing can be done but it takes great skill and experience to do it well.  If not done well, the questioner simply appears foolish.

            Listen more than you talk.  While you are at the being silent business, listen carefully to what is going on.  While the clerk is calling roll, listen, as the clerk's comments may contain hints about how the judge wants things conducted when it is your turn.  The bailiff or clerk will usually give a short speech explaining fundamentals such as where everyone is supposed to stand or sit.  Listen carefully to such instructions and follow them.  During the trial listen to your opponent, make notes of what he says, and decide whether you want to take time to directly refute it when it is your turn.  Listen to the judge.  When he tells you to do something, do it.  Listen especially for hints about the direction he might want you to take.  This is why you should not have a written script.  He may take some element of your case, which you planned to prove very meticulously, for granted, and decide he is more interested in something else you planned to mention later, or even not at all.  Follow such cues, remembering whom it is that you need to convince.

            Talk only when it is your turn and if you have something to say.  Never interrupt your opponent or the judge.  When it is your turn to talk, talk only so long as you have something to say which is germane to the subject, and stop talking as soon as you cannot think of anything else to talk about.  If the question is what time of day it is do not discourse on how to make a watch.

            When addressed, court personnel should be addressed by their titles.  Always use them, and never issue instructions or make requests of the court personnel unless the judge has given you leave to do so.  The judge is the only person who should be addressed, at first, although the clerk might ask you to identify yourself at the beginning of the trial.  The judge, when addressed directly, should be referred to as "Your Honor," not as "Judge Soandso" and never as "Judge."  The last is too familiar, and "Judge Soandso" is usually used when referring to a judge in the third person.  The clerk, when addressed, should be referred to as "Mr. Clerk" or "Madam Clerk."  The bailiff should be referred to as "Mr. Bailiff" or "Madam Bailiff."

            Never approach the bench.  Do not go forward of the tables that are set aside for the use of the litigants unless you have permission.  If you need to submit sets of documents to the judge, say something like, "Your Honor, may I pass these documents [which you will have already described] up to you?"  He will respond with something like, "Hand them to the bailiff."  The bailiff will get them from you and take them to the judge.  If you need to pass up more documents later, do not turn to the bailiff and ask him to take them to the judge.  Instead say, "Your Honor, may the bailiff pass this set of documents up to you?"  The judge will instruct the bailiff to do so.  What you are doing here is two fold.  First, you are respecting the judge's space around the bench.  There are, aside from the etiquette, important security considerations behind this.  Second, you are deferring to the judge's authority in running his own courtroom.

            Dress appropriately.  Your appearance will be the first opportunity that the judge will have to assess your attitude to the proceedings.  You are involved in important business.  Let your clothes proclaim that you are aware of this.  A business suit works well for both sexes.  Less formal modes of dress have become acceptable in many jurisdictions, however, never show up in jeans and a tank top, or shorts.  When you make your two hour visit to see how a small claims calendar runs, see how the people there dress, especially the ones representing finance companies, hospitals, or other entities with more than one item on the calendar, and emulate them in your dress.

            In this series, we have looked at what the security deposit is for, developing policies for its use, keeping records about it, and conducting a small claims trial concerning disputes surrounding the deposit.  As you have seen, successfully defending your use of the security deposit involves more than just gathering up a stack of documents an hour before the trial and showing up.  By implementing our suggestions, you will have commenced preparation before the tenant even signs his lease.  With very little extra effort, this preparation should put you in position to defend yourself with confidence if the necessity should ever arise.

 Part 1, Part 2