Who Will Hear Your Case

The person who hears your case may be a regular court judge who also presides over many other types of cases. But, increasingly, full-time commissioners and referees are being hired to handle small claims cases. Commissioners are attorneys trained to preside over small claims cases but who are paid lower salaries and benefits than are paid to judges (a bit like colleges hiring nontenured instructors instead of full professors). By and large, commissioners and referees–who usually hear small claims cases on a daily basis–do a very competent job, sometimes better than judges, who have other duties and occasionally act as if they are too important to hear such small disputes.

Temporary Judges (Judge Pro Tem)

In addition to commissioners and regular judges, volunteer lawyers are also routinely appointed when a judge or commissioner is ill or on vacation. The legal slang for a temporary judge is "judge pro tem." If your case comes up on a day when only a pro tem judge is present, you will be given a choice as to whether you want to go ahead or have your case rescheduled on a day when a regular judge or commissioner will be present.

Especially if your case is contested and you feel it involves fairly complicated legal issues, you may not want to accept a pro tem judge. Pro tem judges are not paid, and often do not have as much practical experience in the legal areas that are commonly heard in small claims court. They receive some training, but usually don't have the experience or training that a regular judge or commissioner has. Although some are excellent, you may not want to take a gamble by accepting one. It is your choice, so make sure you think it through.

Pay attention to any forms you are asked to sign about the judge for your case. In some courtrooms, before court begins for the day, a clerk will ask you to sign a form accepting a particular judge, without clearly explaining that the judge is a local lawyer serving on a temporary (pro tem) basis and that you have the right to say no. Whenever you are asked to approve a judge, that means the person is a substitute for the real judge, and you have the right to say no.

You can't appeal from an arbitrator's decision in New York. To save time, residents of the Empire State are often encouraged to have their cases heard by a volunteer lawyer arbitrator instead of a small claims court judge. But beware of this alternative. In addition to getting a less experienced decision maker, there is no right to appeal from an arbitrator's decision, as there is from the decision of a regular small claims judge.

Disqualifying a Prejudiced Judge

What if your case will be heard by a regular judge or commissioner who you don't like, either because you know the person or because you have been put off by the way the person has handled other cases? For example, you might live in a small town or city and be convinced a particular judge, whose reputation you know, is likely to be hard on you (for example, you are a landlord and the judge is known to be pro-tenant). Laws exist in nearly all states that allow you to "disqualify" a regular judge simply on your honest belief that the judge is "prejudiced" against you. No one will ask you to prove it. To disqualify a judge, in some states you can simply say, when your case is called (after you've been "sworn in"), something like this: "Your Honor, I believe you are prejudiced against my interest, and I request a trial before another judge." In other states, you need to put your disqualification request in writing and file it in advance. If you think you may want to take advantage of a disqualification procedure, check with the small claims clerk before your court date to be sure you understand the rules.

Especially for cases where a lot is at stake–for example, a group of people file nuisance cases based on drug dealing or noise–it often makes sense to do some research on the judge who is likely to be assigned your case. Start by asking the small claims court clerk for a list of the judges who may be assigned to your case. One good way to check them out is to have someone in your group (or perhaps a friend or relative) who has the necessary contacts talk to several local lawyers who have practiced before the listed judges. Many lawyers will readily share their opinions, especially if they consider a particular judge to be unfair or incompetent. If you discover reliable information about a particular judge that makes you doubt that person's ability to be fair, be prepared to challenge the judge.

If you're going to reject a temporary or regular judge, you must do it before the judge does anything with your case. You cannot "test" a judge's opinion about the case, decide you don't like it, then try to reject him. This is not only ineffective but also rude.

You don't have to say why you believe a judge is prejudiced. After you state your challenge, the judge may have you take the oath again and ask you to repeat your challenge. You aren't expected to say why you challenged the judge, just that you believe he is prejudiced against you or your cause. –Judge (Ret.) Roderic Duncan

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