Killing the Courtroom Lawyer: How Prohibiting Lawyers from Practicing in the People’s Court Can Remedy Inequities in Legal Access

by Jacob Metzger, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

During a trial, a person without attorney representation, a pro se litigant,¹ sits on a deserted island without substantial knowledge of or resources from the judicial system.² Without an attorney, many litigants find abysmal success in representing themselves pro se and end up drowning in the complexity that is the United States’ adversarial system.³ For instance, in federal district court, a plaintiff that represents themself pro se is successful 4% of the time, while a defendant that represents themself pro se is successful 14% of the time.⁴ This statistic is in contrast to around 50% for both parties when they are both represented by counsel and paints a clear picture that access to justice is limited to litigants with attorneys.⁵

Outside of the realm of federal district courts, small claims courts offer unique angles on the problems of pro se representation in the courtroom.⁶ Small claims courts provide widespread access to justice in civil controversies; however, due to the nominal amount of damages and the heightened expense to retain an attorney, there is a lack of incentive for parties to retain attorneys to work these cases.⁷ Therefore, pro se litigants without the means to hire an attorney may struggle if the opposing party retains an attorney to work their case, creating a power imbalance to those of lower socio-economic status.⁸ A wide variety of jurisdictions have different approaches to remedy this problem, but the approach that Ohio should adopt prohibits attorneys from practicing in small claims court.⁹ This article discusses different approaches to permitting attorney representation in small claims court. Part II of this article details the function and purpose of small claims courts as well as the intent behind them. Part III argues that attorney representation has no place in small claims court and prohibition of attorney representation will assist in creating equity in the people’s court.

II. Background

Small claims courts, often referred to as “the people’s court,” are courts of limited jurisdiction that permit lawsuits under a certain monetary threshold to be heard in an expedited process.¹⁰ In Ohio, that monetary amount is currently set at $6,000, while in other jurisdictions, such as California, that monetary amount is currently set at $10,000.¹¹ If a claimant in these states sues above those amounts, they must file in another civil division and may not utilize small claims court.¹² Further, in many states, small claims courts may not issue injunctions.¹³ While these limitations exist, there are still considerable advantages to having a case heard in small claims courts, as the courts are designed to be more digestible for pro se litigants without experience in the law.¹⁴

Utilizing a small claims court is—in most jurisdictions—an optional procedure that permits civil suits to be heard more quickly, more efficiently, and cost effectively.¹⁵ Without the use of small claims courts, a case can take substantially more time to progress, which costs more money.¹⁶ In California, small claims suits typically resolve within three months after the filing date; in contrast, traditional civil cases take years.¹⁷ In many of these courtrooms, the applicable Rules of Evidence are more relaxed, and many procedural formalities and discovery mechanisms are eliminated.¹⁸ Further, formal discovery methods that are prohibited in small claims courts cut costs even more when compared with regular civil trials.¹⁹ For instance, the average hourly cost for the deposition of an expert witness is $300.²⁰ For non-expert witnesses there are less costs associated, but with the cost of a court reporter and various legal fees, that cost can still be over $500 for a day-long deposition plus an attorney’s fee, which averages around $300 an hour.²¹ In jurisdictions that eliminate depositions as a potential discovery mechanism for small claims cases, these fees would be eliminated.²²

Some jurisdictions, such as California, Michigan, and Nebraska, go further than eliminating formal discovery; these jurisdictions prohibit attorneys from practicing in small claims court.²³ In pop culture, this practice of attorney prohibition is largely regarded as the norm.²⁴ For instance, in many televised courtroom dramas that portray small claims court, such as Judy Justice, The People’s Court, and Judge Mathis, the “court” routinely prohibits attorneys from representing the parties.²⁵

This approach would require parties represented by attorneys to file in the general civil division, which creates the heightened expenses detailed above.²⁶ These heightened expenses disincentivize a party from hiring an attorney to litigate the case, encouraging the party to litigate in small claims court pro se.²⁷ Because small claims cases have such low monetary thresholds, an attorney may not make their money back from the case; for example, legal fees that would total thousands of dollars would vastly outweigh a small claims award of a few hundred dollars.²⁸ By banning attorneys from taking small claims cases, a party looking to hire representation for a civil suit with nominal damages would be forced to file in a general civil division, likely with a low profit; thus, it would incentivize the party to litigate pro se in small claims court.²⁹

III. Discussion

Ohio does not prohibit legal representation in small claims court as a remedy to the court’s inequities; however, in the absence of right to counsel in small claims court, it should take that step.³⁰ By barring attorneys from small claims courts, this mechanism would force parties with representation to file in the general civil division, which would increase costs on the parties by slowing the lawsuit, causing increased expenses, and creating legal complexity.³¹ The increased costs could incentivize parties to instead litigate pro se in small claims court; thus, this prohibition of attorneys in small claims court could level the playing field for the people’s court.³²

Further, this approach is ideal when considering the policy rationale behind small claims court, which the California legislature determined was to “provide a judicial forum accessible to all parties directly involved in resolving these disputes.”³³ By preventing attorneys in small claims court, the legislature is both disincentivizing attorneys from working on simple matters and stopping pro se litigants from being steamrolled in the courtroom.³⁴ This attorney prohibition begins to rectify the power imbalance caused by more affluent parties hiring attorneys for smaller fees. By decreasing their profit margins, access to justice and use of small claims courts can increase.³⁵

IV. Conclusion

Small claims courts exist to give the layperson access to justice that is quicker, cheaper, and more efficient than the traditional civil trial.³⁶ Many of these courts eliminate procedural formalities, such as formal discovery; however, some jurisdictions go even further, eliminating attorneys from practicing in the court. This has the effect of causing litigation with attorneys to cost more; thus, disincentivizing attorneys from engaging in the small claims process. This attorney prohibition assists pro se litigants from being outmaneuvered by the court system and maintains fairness for the pro se litigants for whom small claims courts were designed to benefit, effectively killing the courtroom lawyer in small claims court.

Cover Photo generated by DALLE·2 AI System

Jacob T. Metzger

Jacob Metzger is a 3L at the University of Cincinnati College of Law. Jacob received his bachelor's degree in Paralegal Studies at the University of Toledo with a focus in business and communications. Jacob is the editor-in-chief of the University of Cincinnati College of Law Intellectual Property and Computer Law Journal. He joined Law Review to write about consumer protection, intellectual property, advertising law, technology law, and topical topics.

References

1
Pro se, Black’s Law Dictionary (11th ed. 2019).
2
Mitchell Levy, Empirical Patterns of Pro Se Litigation in Federal District Courts, 85 U. Chi. L. Rev. 1820, 1838 (2018).
3
Id.
4
Id.
5
Id.
6
Jessica Zimmer, Difference Between Small Claims vs. Civil Court, Legal Beagle (Nov. 4, 2019), https://legalbeagle.com/5993697-difference-claims-vs-civil-court.html [https://perma.cc/T326-4AXD].
7
Susan Kostal, Solo and Small Firm Hourly Rates: Winners and Losers, by State and Practice Area, Att’y at Work (Jan. 3, 2022), https://www.attorneyatwork.com/solo-and-small-firm-lawyer-hourly-rates/ [https://perma.cc/VU8C-9R56]; Zimmer, supra note 6.
8
Levy, supra note 2.
9
Cal. Civ. Proc. Code § 116.530 (Deering 2022); Neb. Rev. Stat. Ann. § 25-2803 (LexisNexis 2022); Mich. Comp. Laws Serv. § 600.8408 (LexisNexis 2022).
10
Arthur Best, Peace, Wealth, Happiness, And Small Claims Courts: A Case Study, 21 Fordham Urb. L.J. 343 (1994).
11
Ohio Rev. Code Ann. § 1925.02 (LexisNexis 2022); Cal. Civ. Proc. Code § 116.221 (Deering 2022).
12
Ohio Rev. Code Ann. § 1925.02 (LexisNexis 2022); Cal. Civ. Proc. Code § 116.221 (Deering 2022).
13
Ohio Rev. Code Ann. § 1925.02 (LexisNexis 2022). An injunction is “a court order requiring a person to do or cease doing a specific action.” Injunction, Cornell L. Sch., https://www.law.cornell.edu/wex/injunction [https://perma.cc/QPX6-S4JC].
14
Cal. Civ. Proc. Code § 116.120 (Deering 2022).
15
Cal. Civ. Proc. Code § 116.120 (Deering 2022).
16
Camille Lopez, How Long Does the Small Claims Court Process Take?, People Clerk (Dec. 27, 2022), https://www.peopleclerk.com/post/small-claims-timeline [https://perma.cc/3VLX-AYF3?type=image]; Jeremy Swanson, How Long does A Civil Lawsuit Take in California?, Swanson O’Dell A.P.C. (Jan. 14, 2015), https://swansonodell.com/how-long-does-a-civil-lawsuit-take-in-california/ [https://perma.cc/R7Z9-SHST].
17
Lopez, supra note 16; Swanson, supra note 16.
18
See Ohio Rev. Code Ann. § 1925.09 (LexisNexis 2022) (Ohio law prohibiting depositions and interrogatories in small claims court).
19
Expert Witness Fee Study, SEAK, https://seak.com/expert-witness-fee-study/ [https://perma.cc/5MJS-BYYR]; Karen Renee, How Much Do Court Reporters Charge for Deposition Services?, eCourtReporters (July 20, 2020), https://www.ecourtreporters.com/ecourt-reporters-news/how-much-do-court-reporters-charge-for-deposition-services/ [https://perma.cc/NS8P-UX3A]; Sharon Miki, Lawyer Statistics for Success in 2023, Clio (Feb. 3, 2023), https://www.clio.com/blog/lawyer-statistics/ [https://perma.cc/VUW6-3LWV].
20
Expert Witness Fee Study, supra note 19.
21
Renee, supra note 19.
22
Expert Witness Fee Study, supra note 19; Renee, supra note 19; Miki, supra note 19.
23
Cal. Civ. Proc. Code § 116.530 (Deering 2022); Neb. Rev. Stat. Ann. § 25-2803 (LexisNexis 2022); Mich. Comp. Laws Serv. § 600.8408 (LexisNexis 2022).
24
See Judy Justice (Amazon Freevee 2022); The People’s Court (Ralph Edwards-Stu Billett Productions); Judge Mathis (Telepictures Productions, Inc.).
25
See Judy Justice (Amazon Freevee 2022); The People’s Court (Ralph Edwards-Stu Billett Productions); Judge Mathis (Telepictures Productions, Inc.).
26
Expert Witness Fee Study, supra note 19; Renee, supra note 19; Miki, supra note 19.
27
Bridget Moilitor, Do I Need a Lawyer for Small Claims Court? FindLaw (Apr. 30, 2020), https://www.findlaw.com/litigation/going-to-court/do-i-need-a-lawyer-for-small-claims-court-.html [https://perma.cc/EX2P-CV85].
28
Expert Witness Fee Study, supra note 19; Renee, supra note 19; Miki, supra note 19.
29
See generally Expert Witness Fee Study, supra note 19; Renee, supra note 19; Miki, supra note 19; Cal. Civ. Proc. Code § 116.530 (Deering 2022); Neb. Rev. Stat. Ann. § 25-2803 (LexisNexis 2022); Mich. Comp. Laws Serv. § 600.8408 (LexisNexis 2022).
30
Ohio Rev. Code Ann. § 1925.01(D) (LexisNexis 2022).
31
Suzanne E. Elwell, The Iowa Small Claims Court: An Empirical Analysis, 75 Iowa L. Rev. 433, 448 n.96 (1990).
32
Expert Witness Fee Study, supra note 19; Renee, supra note 19; Miki, supra note 19.
33
Cal. Civ. Proc. Code § 116.220 (Deering 2022).
34
See generally Expert Witness Fee Study, supra note 19; Renee, supra note 19; Miki, supra note 19; Ohio Rev. Code Ann. § 1925.09 (LexisNexis 2022); Cal. Civ. Proc. Code § 116.530 (Deering 2022); Neb. Rev. Stat. Ann. § 25-2803 (LexisNexis 2022); Mich. Comp. Laws Serv. § 600.8408 (LexisNexis 2022).
35
See generally Expert Witness Fee Study, supra note 19; Renee, supra note 19; Miki, supra note 19; Ohio Rev. Code Ann. § 1925.09 (LexisNexis 2022); Cal. Civ. Proc. Code § 116.530 (Deering 2022); Neb. Rev. Stat. Ann. § 25-2803 (LexisNexis 2022); Mich. Comp. Laws Serv. § 600.8408 (LexisNexis 2022).
36
See generally Elwell, supra note 31.

I. Introduction

II. Background

III. Discussion

IV. Conclusion

Author

References