Small claims litigants may utilize attorneys to assist in the presentation of their claim or to appear in their behalf. The role of the attorney may be limited, but not eliminated, by the court. Small claims litigants may also utilize non-attorneys to assist them or, at the court's discretion, to appear in their behalf.
Commentary
Attorneys may represent parties at small claims trials. A party represented by counsel should not be required to appear personally unless the party is a necessary witness. Although attorneys are permitted in small claims sessions, the forum was "obviously" intended to provide a form of hearing that did not require assistance of counsel. See McLaughlin v. Municipal Court of the Roxbury Dist., 308 Mass. 397, 405 (1941). Thus, the court should carefully control the proceedings to insure that the presence of an opposing attorney does not inhibit a full presentation by the unrepresented litigant. One party cannot, "by being represented by counsel, change the essential nature of the hearing [and] by being so represented relieve the judge of his duty under the statute." Uniform Small Claims Rule 7 (e). The court has wide discretion as to the extent of participation by counsel in a hearing, and, in appropriate circumstances, may refuse to permit uncooperative counsel to examine witnesses. McLaughlin at 406. Limitations imposed on particular attorneys should stem from inappropriate tactics or style rather than from the merits of their client’s cases.
Non-attorneys closely connected to a party, such as spouses, family members, or employees, may be permitted to appear in place of the party if the court, in its discretion, is satisfied that the person is authorized to appear for the party and that substantial justice can be accomplished with the use of a surrogate. If it should have been obvious that the personal presence of a party was necessary to determine the issues, the court may refuse to credit the testimony of a surrogate party. In such circumstances, a continuance should be denied and/or appropriate costs may be imposed under Uniform Small Claims Rule 7(h). In reaching its decision as to whether a particular individual is a legitimate surrogate, a distinction may appropriately be made between those parties who are necessary to a fair trial because they are percipient actors in, or witnesses to, the disputed matter, and those (such as officers of corporate plaintiffs) whose testimony is unlikely to be valuable.
The court may permit spouses, family members, employees, and others to assist an appearing party in the presentation of his or her evidence. Uniform Small Claims Rule 7(h). In this area there is no "bright line" rule, and the court must balance its desire to maintain the informality of the small claims procedure with the need to limit formal representation of others to those subject to the discipline of the court.
The court may impose reasonable limitations on the presentation of evidence and argument, but this must not be done summarily or arbitrarily. Procedural due process, albeit simplified, must always be adhered to. O’Farrell v. Dubin, 16 Mass. App. Dec. 100 (N. Dist. 1958).