Presiding Justice of the Pima County Consolidated Justice Court
Tucson, Pima County [email protected]
State Bar 018184
In April 2016 the Arizona Case Processing Standards Steering Committee “brought to light” a problem involving the substantial underperformance in the time required to close the average small claims case relative to the adopted time standards. Subsequently, Administrative Order 2016-115 established the Committee on Improving Small Claims Case Processing. The Order reads in part that “The Court and justices of the peace handling these cases desire to review the rules of procedure applicable to the processing of small claims cases to identify any changes that may serve to reduce the time and expense to litigants in small claims cases.”
Current time standards require that 98% of small claims filings be disposed of within 180 days. Statewide data indicates that only 77% meet the standard. Of the remaining 23% of cases, the majority remain open because the defendant was served but never filed an answer. There is not a provision in the Justice Court Civil Rules of Procedure to dismiss a small claims filing for lack of prosecution. Therefore, the courts must rely on the Civil Rules that provide for dismissal 11 months from the filing date. Under the current rules it is not possible for the courts to meet the adopted time standard.
Instead of adopting the proposed Rules, a simple, straightforward solution to resolve the delay in processing small claims cases is to require that courts dismiss cases timely for failure to affect service and to impose a rule that allows for an earlier dismissal for lack of prosecution. The committee, however, has proposed numerous rules that only complicate the resolution of these cases, create significant case management inefficiencies and impose additional costs to the litigants as well as courts. Further, the proposed rules appear to undermine a basic precept promoting fairness that has become ingrained in our legal system for decades.
Rule 7(a), Summons; Hearing Date
The proposed rules require the court to set a hearing date at the time of filing. In FY2017 the Pima County Consolidated Justice Court (PCCJC) received 3,460 small claims filings. Only 11% (396) actually went to hearing. It makes no sense to calendar the remaining 89%. This is not only inefficient but contrary to effective case management. It will be extremely difficult to manage the calendar as cases terminate prior to hearing, which obviously involves the vast majority. This rule will increase hearings in our court from the current 1.5 per day to 14 per day.
PCCJC utilizes nine volunteer hearing officers who conduct small claims hearings. These volunteers have only committed to 4-8 hours per month. This proposal will require numerous more volunteers or, if volunteers cannot be found, the court will have to utilize pro tem or regular judges; a cost for which this court has not budgeted. While recognizing the issue of “phantom” hearings will be most onerous on this consolidated Court, the fact is under the proposed Rules, the result will be the wastage of all Justice Courts time and resources.
Rule 7(c), Time for Service
Rule 113(i), Justice Court Rules of Civil Procedure, requires the plaintiff to serve the defendant within 120 days from filing. The Committee has proposed that service be effected within 20 days from filing but provides the plaintiff the ability to file for a 30-day extension and obtain a new summons for service if additional time is needed. This seems unrealistic and most likely will result in the majority of plaintiffs requesting an extension and incurring additional costs. It is an inconvenience for them as well as the court. The current process of 120 days allows sufficient time for service, does not allow for a continuance and disposes of the case well within the time standard.
Statewide statistics reflect that the average age of cases with no proof of service is 755 days. Courts should be required to enforce the current rules and determine a means for identifying these cases at 120 days instead of creating an unrealistic deadline that almost mandates an extension request. In FY17 PCCJC terminated 38% of the filings for lack of service.
Rule 9, Answer not Required and Rule 10(d) Counterclaim
The proposed rule eliminates the required Answer. Filing of an answer is fundamental to due process. It ensures that the plaintiff is aware of the defenses the defendant will use at the hearing and leaves no room for surprise or ambush. This proposed rule will allow the defendant the ability to continue to raise defenses during the hearing.
Likewise allowing the defendant to file a counterclaim 10 days before the hearing does not give the plaintiff time to prepare. Under current rules, the counterclaim is filed at the time of answer giving the plaintiff ample notice. This proposal flies in the face of the so-called “Zlakett” rules which dominate the Civil Rules of Procedure. For the past 30 years, every practitioner of the law in this State has learned about the need to disclose evidence and witnesses timely. This policy became known as the “Zlakett rule” and was strengthened and enforced primarily through Rule 26 of the Civil Rules of Procedure. The clear and stated intent of the policy is to avoid trial by ambush. Arizona does not allow a “Perry Mason” moment where a surprise witness appears and disgorges evidence at trial that had not been disclosed timely to the opposition.
The Zlakett rules level the playing field and permit each side to prepare for the case – and perhaps to resolve the matter upon disclosure of its weakness or the opponent’s strengths. While it is recognized that small claims cases do not and should not be subject to all the requirements of ARCP 26, by not requiring that a Defendant file an Answer, those rules and the intent behind them are tossed out the window.
The primary focus of Rule 9 would encourage the very thing the Zlakett rules seek to avoid: trial by surprise. If a Defendant appears at a hearing, for example in a contract case, with a second form of the contract in hand, the Plaintiff may not have had time to prepare and dispute that document. Indeed, the Plaintiff may well be surprised at any defense offered by the opposing party as no denial of the claim has been filed prior to hearing. Further, it is obvious that the parties would frequently be forced to seek continuances given that one party has not had any chance to prepare for the opponent’s evidence or legal position. And, as stated above, any counterclaim would necessitate a delay so the Counterdefendant could prepare.
Perhaps it is best to place these claims in proper perspective. Although such are labeled “small claims” the amount of money can, given the financial situation of the parties, be significant if not downright onerous. Nowhere, in any courtroom do we allow trial by ambush, yet, for these “small claims” the State of Arizona is preparing to not only allow such prejudice but is actually encouraging that situation.
Rule 14(b), Rescheduling the Hearing and 14(f), Additional time to Prepare
The proposed rules allow a party to request a continuance 15 days prior to the hearing. In PCJCC, if every one of the 3,500 cases must be set for a hearing, the calendar will be full, again at an average of 14 a day. It will likely be too difficult to reset the hearing in a timely manner. The rules also provide the opportunity for the defendant to appear at the hearing and request a continuance if more time is needed to prepare. This rule is a self-fulfilling prophecy when combined with Rule 9 above. Defendants can ignore the claim and then come into court and ask for a continuance due to their own neglect in addressing the complaint. The frustration that will be felt by a truly aggrieved Plaintiff will be justified when the system is so fundamentally slanted towards the rights of the opposition in disregard of the Plaintiff.
The current process has been in place for decades and provides for an informal, speedy and inexpensive resolution of small claims lawsuits. Ensuring that courts follow the current rules, as well as adding a provision for cases to be dismissed earlier when the defendant fails to answer, should bring the disposition of these cases well within the time standard. We would recommend noticing the Plaintiff at 150 days that the case will be dismissed, without further notice, unless a default or dismissal is filed within 30 days.
If the rules are deemed to be advantageous for smaller courts, then PCCJC would request an exemption as the futility and waste of setting 3,500 trials a year, only 1 percent of which will proceed, is obvious.