Before a trial begins, the court should explain the procedure to the litigants. The court should conduct small claims trials in an informal manner while maintaining order and protecting the due process rights of the parties.
Commentary
The attractiveness of small claims procedure is a direct reflection of the atmosphere in which it is conducted and the quality of justice that is perceived to be available. While small claims sessions are apt to be busy and sometimes emotional, the court must insist that litigants do not use the informality to debase the forum. It is also important that the court be perceived as giving equal consideration and impartiality to the hearing of small claims as it does to more complex trials.
Small claims trials should be conducted in open court and on the record. Tape recording of trials is necessary for accountability purposes and so that the court will have a record of evidence to consult if the small claim is taken under advisement. At least one court officer should attend all small claims sessions. Uniform Small Claims Rule 7(d) and (e), as recently amended.
Before trials begin, the court should instruct parties as to how they are to proceed. (See Appendix E for sample instructions.) To save time, the instructions should be given to all the litigants waiting for trials rather than individually.
Before commencing a trial, the court should determine whether any party has a language barrier that inhibits full understanding of the proceedings. A continuance may be in order if there is not a qualified interpreter present. See Standard 2:05.
The court should conduct the trial in whatever order and form and with such methods of proof as it deems best suited to discover the facts and do justice in the case. Uniform Small Claims Rule 7(c). The Supreme Judicial Court has commented on the implications of this Rule.
Rule 7...provid[es]...that a judge shall have wide discretion in conducting the hearing as to "order and form" and "methods of proof" in matters that in formal procedure are governed by fixed rules or principles....The statute would fail of its purpose if it merely substituted for established rules or principles applicable to ordinary procedure another set of detailed rules for the trial of cases under the small claims procedure. The informality that is to characterize a hearing under the small claims procedure imports that the judge may be permitted by rule to exercise a wide discretion.... Even under formal procedure the judge "ought to be always the guiding spirit and the controlling mind at a trial" ...[and] may put proper questions to witnesses....The statute relating to small claims procedure, however, contemplates, if necessary, more active participation of the judge in the conduct of the hearing than is usual under formal procedure. Obviously it was intended by the statute to provide a form of hearing in which assistance of parties by counsel would not be required... [and] in such cases active participation by the judge in the examination of witnesses ordinarily would be essential for discovery of the facts and determination of the justice of the case...." McLaughlin v. Municipal Court of the Roxbury Dist., 308 Mass. 397, 403-405 (1941), citations omitted.
Informalities may thus be permitted in order to encourage ease. Parties and other witnesses must be sworn when testifying (see Uniform Small Claims Rule 7 [e]) but the parties may stand or sit at the counsel tables rather than take the witness stand. They may use conversational tones and present facts in narrative form; they may be permitted to alternate speaking when such order of evidence appears warranted.
When an oral motion is made, the court should note on the docket sheet whatever action the court takes on the motion. Uniform Small Claims Rule 7 (e). Motions to amend pleadings should be liberally allowed so that claims are determined on their merits rather than on technical considerations. Uniform Small Claims Rule 5.
Despite the informality of the proceedings, the plaintiff must, as in any civil action, prove each of the elements of his or her cause of action by a preponderance of the evidence and according to the rules of substantive law. G.L. c.218, s. 21.