Friday, August 1, 2014

Improved but not perfect: Marion County Small Claims Courts two years later

June 26, 2014 by Elizabeth Daulton

In May 2012, the Marion County Small Claims Courts Task Force (“Task Force”) issued a report describing serious problems in the management and procedures of the county’s nine small claims courts. This report recommended a number of reform efforts—some of which could be accomplished by local court rule, and others which required legislative action. Before this report was issued, the Marion County Circuit Court created an Advisory Committee (composed of state representatives, plaintiffs’ attorneys, defense counsel, law students, and law clerks). This committee was designed to assist the Circuit Court and small claims court judges in reviewing and approving new rules which would promote uniformity and fairness among each of the nine Marion County Small Claims Courts.

Pull quote: "These are not the same small claims courts we had before." -- Judge Louis Rosenberg, Marion County Circuit CourtToday, two years after the Task Force published its report, under the leadership of Marion County Circuit Court Judge Louis Rosenberg and in collaboration with the Advisory Committee and the township judges, a total of 33 new local rules have been enacted to help institute these recommended reforms in all Marion County Small Claims Courts. The Circuit Court has also recently contracted with the National Center for State Courts (“NCSC”) to perform an analysis of the nine small claims courts and recommend further reforms.

“It’s very possible to have reform within the constraints of the township system,” Judge Rosenberg said. “It’s tough but it can be done—and we’ve made a lot of progress.” One of these improvements is in the atmosphere of the small claims courts. According to Judge Rosenberg, the judges are now focused more on the need to emphasize and protect litigants’ rights, particularly defendants’ rights, and have taken steps to do so. “These are not the same small claims courts we had before.”

A key difference between small claims courts and Circuit and Superior courts is the fact that most small claims litigants are pro se, or unrepresented. They may not be aware of the various procedures required by the small claims system—such as serving the defendant with the summons and notice of claim. Judge Rosenberg explained that one of the primary purposes of the small claims system is to provide a forum where litigants can act without attorneys. Likewise, he said one of the primary roles of the small claims judge is to ensure that one party isn’t benefiting simply because he or she has an attorney.

One of the new rules provides, in part, that the Clerk shall assist unrepresented litigants in completing court forms (although the clerk is not permitted to provide any legal advice as to the use or effect of the forms).1 For example, a clerk may tell a plaintiff that a certain section of the Notice of Claim form is designated for the facts of the case, but cannot tell the plaintiff which facts to include in this section. A new rule also requires the Court to actively notify litigants of their legal rights in small claims proceedings.2 This notification can be in the form of a verbal announcement by the judge, bailiff, or a member of the court staff, or by the 15-minute “Representing Yourself in Small Claims Court” video produced by the Marion County Circuit Court in late 2012, and underwritten with a grant from the Indiana Supreme Court.

Another new rule protects defendants’ constitutional right to a jury trial. Trial Rule 38(B) requires that a request for jury trial be filed within ten days after the time at which a responsive pleading is filed (or would be due, in a small claims case in which no responsive pleading is required). However, this rule extends this jury demand deadline to ten days after the first setting of the initial hearing.3 The comment to this rule discusses the fact that many pro se litigants first become aware they have the right to request a trial by jury at the first hearing—after they see the litigants’ rights video, read a pamphlet, or speak with court staff. In an effort to ensure that pro se defendants do not inadvertently waive their constitutional right to jury trial, the Circuit Court has extended the Trial Rule 38(B) deadline.

Many of the township judges have gone even beyond these local rules, implementing their own policies to help ensure greater access to justice. Center Township now uses E-Certified Mail for service of process in cases in which service by Constable is not requested. The court makes tracking numbers available on the Odyssey case management system (and in the court files) to allow parties to search for the documents’ status at USPS.com. This allows plaintiffs to see when documents were served, and defendants to see when documents will be arriving, well before a court date—greatly reducing the number of defendants who claim “gutter service.”

Judge Rosenberg cites the establishment of more uniformity among the small claims courts as another success. Rather than seeing each township as its own island, the judges are beginning to visualize these courts as divisions of a countywide system. Because so many cases (excluding landlord/tenant cases) are transferred between townships, it is important for each to have similar standards and procedures. The nine township judges are moving closer to a unified system, and in March 2014, elected Lawrence Township Judge Clark Rehme as their Chief Judge. Judge Rehme will take over the Circuit Court’s role of setting the agenda and presiding over the regular meetings of the township judges.

However, more work remains to be done, Judge Rosenberg says. The issue of small claims court governance is one focus of the NCSC’s study. Judge Rosenberg visualizes a central administration whose responsibilities would include looking at Odyssey financial and case management data, studying rule changes, and providing direct assistance to each of the township courts. Funding such a position would likely require the townships to collectively retain some of the filing fees which are currently remitted to the county and state. “We can create a really responsive system, with high-quality judicial work accessible to pro se litigants,” said Judge Rosenberg.

For additional information about the Marion County Small Claims Courts please contact Elizabeth Daulton at 317-234-7155 or elizabeth.daulton@courts.in.gov.


1 LR49-SC02-201
2 LR49-SC00-402
3 LR49-TP38-303