Choosing to Have your Case Heard by a Judge or an Arbitrator

Where you choose to have your case decided can make a difference.

Even before you arrive at the court you should consider whether you want your case to be heard by a judge or an arbitrator. In some instances you have the choice. That choice is made during the calendar call. When your name (as the plaintiff) is called, if you respond with nothing but your name (as is customary) and the defendant does likewise, your case will be automatically heard by an arbitrator. If, however, either you or the defendant responds by saying "by the court" following your name, your case will be automatically heard by a judge. Here are some facts to help you decide which one to choose:

Judges can and do make errors in their decisions. That is why there are appeals courts. Arbitrators also make errors in their decisions, but when they do their decision is final. So, if you fear you might lose and you do not want to lose the right to appeal your case, when your name is called at the calendar call you should respond to the clerk by saying your name and the words by the court. For this dubious advantage you may have to wait an additional 30 to 50 minutes, and if there is an overabundance of cases, you further run the risk of not being heard at all that night. While there are many arbitrators, there is usually only one presiding judge. What allows you to appeal your case, should you lose before the judge, is the presence of a court stenographer (nowadays, a machine, faithfully recording the dialogue of the case on tape for posterity). If you're obstinate and up for the challenge, you can obtain from the clerk at the small claims court window an instruction sheet explaining in the most general terms how to appeal the case.

Observation The process of appealing a decision is really a task for a lawyer, and that is expensive. The legal fees could easily consume the maximum award ($3,000) of the small claims court. Furthermore, the appeals court refuses to hear more than two-thirds of the requests for appeal. Nevertheless, the reader should know that a Notice of Appeal must be filed within 30 days of receipt of the date noted on the judgment (the judge's decision), or the postmark on the envelope the judgment arrived in. Save the envelope; you may need it.

I have had six hearings "by the court." In one case the defendant and I were asked by the court clerk to step into a small room to try for a settlement by mediation. A student attorney, practicing her mediation techniques, tried to find some middle ground that could permit us to settle our dispute without having to go before the judge. Hard heads prevailed, and the case had to be heard by the judge.

Observation A case settled by mediation is binding only when both parties agree to sign a document in which the terms of the settlement are stipulated.

Whether before an arbitrator or a judge, after the defendant presents his side, you get another chance to respond and even to ask the defendant some questions that will help score points with the arbitrator or judge. The defendant also gets a final opportunity to question the plaintiff.

Your last opportunity to try for settlement comes when you take the elevator down with the defendant. Don't avoid it-think of it as another opportunity. Stay calm, be nice, and try to work out an agreement on payment: Money in your hands up front and early is worth a lot more than the hoped-for outcome of a protracted collection effort.