Subsection 3.4. Rental Courts and Rental Judges

 

In the 1990s, several states in America, including California, had a rising “rent a judge” business. Rental judges are confined to civil lawsuits. After both sides agree to  jointly "rent" a judge, the rental judge serves as a judge in their case.

 

Aside from renting judges, there is also “rent a court”. A new Legal Services Corporation provides a venue, similar to a formal court, where upon request, there are also a clerk, court reporter, and so on. Often, these “rental courts" are much better equipped than real courts. These companies are all private business organization, but they actually provide mediation and conciliation services. California has a rather large-scale company that has a lot of judges who have resigned or retired; A number of the shareholders are also retired judges and lawyers. Rental judges and courts have expensive fees. In California, the rate is $350 an hour. With more complex cases that use the full range of services, it is not surprising for a hearing lasting a few days to end up costing twenty or thirty thousand dollars. 

 

After renting a judge and court, trial can begin. The procedure and the formal court hearings are exactly the same as the government trials; the benefit is that the parties are spared the pain of the government court schedule.

 

By comparison, the government courts are obviously "a good bargain". But with the short supply of courts and long waiting period, even if  it is finally your turn to have a trial date, the court can still postpone it at any time. To avoid getting trapped in a "Justice delayed is justice denied" situation, sometimes renting a judge is definitely a more attractive option. In the more serious British and Hong Kong societies that adopt British law, however, this concept will probably not catch on. 

 

Renting a court is more convenient. However, in addition to expenses, more important is the fact that the rented judge is not guaranteed to be impartial. According to some lawyers’ experiences, rental judges have a tendency to be more partial towards big law firms and be more unfavorable towards small law firms. The reason is that big law firms will always have a steady flow of big cases, so the rental judge will have a long-term patron. Therefore, when small law firms are deciding whether or not to rent a court and a judge,  they must be careful. 

 

           Section 4.   Major Principles of Litigation

 

Subsection 4.1.  Facing Small Claims - Serious Preparation is Still Required

 

Whether it’s the lawyer or the litigant, whether the case revolves around millions of dollars worth of debt or petty money, the basic premise of any litigation is to prepare seriously in advance;  this is the most important principle. As for what the correct attitude is to treat the case and the substance of what preparations are needed, I shall use a true small claims case to illustrate.

 

I have a friend who is a small egg wholesaler. One day, she received a summon from the Small Claims Court. She was being sued by an egg supplier who accused her of owing $2,500 and not paying it back. This friend turned to me for help, but I had to explain to her that Small Claims Courts did not allow hiring lawyers for cases. However, her English proficiency was limited and she did not have any prior experience with litigation. Therefore on her behalf, I drafted a brief letter and methodically explained her case and justifications. I told her to bring the letter to court and let the judge read it, so the judge could quickly understand her situation. In this case, aside from responding and going to court, my friend, the egg wholesaler, could also cross complain against the other party and require the plaintiff to pay damages for this unjustifiable litigation. 

 

Regardless of which court it is, a judge’s time is always very valuable. If the preparation work is poorly done and the documentary evidence is incomplete, and the answers to the judge’s questions are incoherent, then you are at a disadvantage. If your English is not good or your communication skills are poor, then writing out the facts of the case clearly and  use them to tell the story when the time comes, or ask someone to help write them down in English to show the judge, are a good method. However, after the judge reads the written narrative, he or she may ask the client a few questions. It is necessary to think clearly and resourcefully when that happens. The Small Claims Court generally allows the parties to bring into the courtroom their friend or relative who speak English to interpret for them. This is different from other courts which require that only professionally qualified independent interpreters can be employed in those courts.

 

On the day of the trial, the plaintiff brought the papers and accounts that proved the defendant did not pay in full the debt when she received the invoices. They showed that the defendant owed over two thousand dollars. Aside from presenting the judge with a letter containing the narrative about the case, the defendant explained the reason why she had not paid in full. She also invited a former sales person working for the plaintiff as a witness. The witness testified that in order to boost business, salespeople often verbally gave wholesalers discounts or special promotional discounts and other benefits. Therefore, it was reasonable for my friend the wholesaler to pay according to the discount unit price. 

 

After the judge listened to the petitions from both sides, the judge felt that since the vendor’s own employee gave the customer a discount, the supplier had to fulfill and acknowledge it. Therefore, the judge ruled against the supplier and additionally required him to compensate the wholesaler twenty seven dollars to cover the court fees. However, the wholesaler’s counterclaim about the supplier having unreasonable litigation claims did not hold up, because the judge ruled that there was insufficient evidence to prove the supplier was deliberately causing trouble. 

 

The story above not only shows the Small Claims Courts’s procedures and basic operations; more important it shows that even in the smallest cases, the preparation work done in advance can be the fundamental factor for victory. As shown in the above case, if the plaintiff supplier had just done some investigation work beforehand, he would be aware of the discounts his employees were giving out. Then, he would have no reason to sue anyone. Conversely, if before the trial the small wholesaler had not coherently clarified matters, nor asked anyone to help her write out her narrative in English for the judge to read, and did not find a witness to testify in court, the lawsuit’s result could have been different. 

 

Subsection 4.2. Qiu Ju goes to Court—Stop when you are Ahead

 

The Story of Qiu Ju is a very interesting movie. The story talks about a countrywoman named Qiu Ju who lives in a Northern China village. When her husband and the village head were quarreling, the village head kicked her husband’s lower body which injured his bones and potentially affected his chance for producing offspring. This could mean he would have no sons. Qiu Ju angrily complained to the People’s Court explaining how the village head had injured people. Qiu Ju was not complaining so that she could receive compensation, but she actually only wanted to recover justice in the village and for the village head to apologize sincerely. Unexpectedly, the village head did not have any option to get away gracefully and refused steadfastly to admit fault. Qiu Ju was determined not to be deterred by this hardship and step by step moved up the chain of litigtion, even if it reached eventually to Beijing. The details are skipped over here. 

 

In Qiu Ju’s story, the part that has the most human elements and satire are when her case was at its most intense, Qiu Ju had a problem with her pregnancy. Luckily the village head and the villagers collectively brought her to the city to receive treatment. They saved the mother and her child. At this moment, the village head became Qiu Ju and her family’s benefactor. After Qiu Ju gave birth to her baby boy, her problems of producing a male heir were laid aside. With her anger subsided, and balancing relationships and justice, she came to terms with the village head and personally went to his home to invite him to her baby’s full month celebration dinner. However when everyone was happily awaiting the village head’s arrival, they found out that Qiu Ju had won her lawsuit and the village head was arrested. Qiu Ju ran to chase after him, but was only left with feelings of regret and melancholy. 

 

Qiu Ju’s perseverance to uphold principles, fearlessness before authority, and search for justice are very respectable. But from her story, we can also get some enlightenment. When a person is overly persistent beyond the point that is appropriate, it will cause the opposite effect and regret. In reality, this is one of the most important lessons to keep in mind when one is actually litigating. 

 

In a lawyer’s job, whether its litigating for  a client or negotiating business, a major challenge is to decide under what circumstances to persist at all cost, and when compromise should appropriately be made. These kinds of challenges are known as “judgement calls” and we shall elaborate on them further. Here we introduce another Small Claims Court example to demonstrate. 

 

A wealthy businessman wanted to build a luxurious villa. During a dinner social, his friend’s wife, who was an interior designer, volunteered to help him with his villa’s interior design. The wealthy businessman gladly accepted her offer. The next day, he immediately sent the drawings of his villa to her.

 

Two months later, the businessman received an invoice for the interior design services that charged him more than fifteen hundred dollars. The wealthy businessman refused to pay the bill, so his friend’s wife filed a lawsuit against him in the Small Claims Court. During the court hearing, the businessman brought up two points addressing why he would not pay the bill. First, when the friend’s wife mentioned working for him, she did not specify how fees  would be charged or sign a contract. Second, he believed the wife exaggerated the services and time spent on the project inconsistent with the facts. 

 

After the judge listened to the stories of both sides, he decided the interior designer won the lawsuit, but ordered the businessman to pay her a service fee of $900 and not the original demand of $1,500.

 

The businessman was frustrated and decided to file an appeal. According to the procedures, the court above the Small Claims Court is the Superior Court. In the appeal, the Superior Court not only reconfirmed the businessman the loser, it also changed the amount he had to pay the interior designer back to $1,500. Further, the businessman had to pay the court costs from the first and second lawsuits.

 

If this wealthy businessman had watched The Story of Qui Ju, he might appreciate the lesson that there are times to stop when you are already ahead.  Or, if he had read this book, he might understand that a lawsuit is a "weapons are brutal and wars are dangerous" proposition. Victory or defeat are always unpredictable; he should have abandoned the appeal and saved a few hundred dollars.

 

Subsection 4.3.  Keep your Mouth Shut - Talk Too Much and Mistakes are Guaranteed

 

In American law school classes, the professor will often tell this popular story: Mr. A and Mr. B were fighting. Mr. A bit Mr. B’s ear and injured him. During the court hearing, the prosecutor summoned Mr. C who was a witness during the fight.

 

Mr. A’s defense lawyer asked Mr. C: “When Mr. A and Mr. B were fighting, were you at the scene?”

 

Mr. C replied: "Yes!"

 

Question: "At that time, did you see Mr. A bite Mr. B’s ear?”

 

Answer: “No!"

 

At this point, the defense lawyer should have stopped questioning the witness because the purpose had already achieved. But he could not help himself and continued to ask, “Since you did not see with your own eyes, why did you say that Mr. A bit Mr. B’s ear?”

 

Mr. C replied: “Because I saw Mr. A spit out an ear!”

 

During a lawsuit, besides telling the truth when oral statements are taken or testifying in court, "Remaining silent" and "Loose lips sink ships” are doctrines that lawyers and litigants must keep in mind. The story above illustrates a lawyers mistake of talking too much. Usually, such mistakes are relatively rare for a lawyer. But clients making this kind of mistakes are very common. 

 

In criminal cases, very often the defendant (or the deferent’s family) feels that he has been wronged in some parts of the case. He ends up with a lot of repressed anger and frequently complains that his lawyer would not permit him speak to the judge in court. In most criminal cases, lawyers will choose to not allow clients to testify in court because "loose lips sink ships”. We must remember that under the Fifth Amendment of the Constitution, the defendant can remain silent if his testimony could be self-incriminating and he will not be forced to give a confession. Under the United State’s Common Law principles, a defendant is presumed innocent before being convicted. The prosecutor is responsible for proving the crime and not the defendant. Referring back to the "Simpson case", the prosecution had to show strong evidence that O.J. Simpson committed the  murders. In court, Simpson did not need to prove that he was not at the scene. If at the time O.J Simpson gave up his right to remain silent, the prosecuting lawyer would have the right to ask him some questions. Therefore, when lawyers are guiding their clients or witnesses, they will warn them by saying, “Do not volunteer any information”.

 

Section 5.   Insurance, Damages and Civil Litigation 

 

If you open up an American yellow pages directory, you will definitely see numerous lawyers advertising their services for traffic accident and "personal injury" cases. A common headline is “If you do not get compensated, you will not have to pay any fees”. These kinds of advertisements also take up a large chunk of Chinese language newspapers. 

 

If you are  unfortunately injured in an accident in the United States, the habit is to identify the person responsible (for example, if a hole in the street caused you fall, the responsible party would be the municipal government) and then hire a lawyer to sue the person responsible to obtain compensation. If the person responsible loses, his insurance company will usually pay for the compensation.

 

This is a brief description of insurance claims and it is also the most common type of  civil lawsuit in the United States. Insurance, law, the legal profession and compensation are concepts that are intricately linked in numerous ways. In recent decades, these concepts have generated a major impact on American society, and they are not usually easily understandable for people from different countries.