Interviewer: What are people’s rights in terms of filing? How does one go about doing that? What are their rights when they want to file against someone?
Robert Cummings: A person has a right to seek vindication when he or she believes that his or her rights have been violated. The courts are open to any and all people. You can walk down to any courthouse in Utah, including the Matheson Courthouse on 455 South State, and sit down and watch what happens in the courtroom. In fact, I strongly encourage anybody to sit down and see what goes on because the court system in America is one-third of our government at both the state and federal level. It is a very important process. The courts are meant to be open to the public for a reason. The American court system depends upon transparency. The Founding Fathers wanted to avoid what are known as “Star Chambers”, meaning court cases resolved behind closed doors out of the view of the public.
As for starting the process, all it takes is the filing of a complaint. Individuals can, on what is called a pro se basis, meaning they are representing themselves, file a lawsuit if they believe that they have been wronged by somebody else.
There is a Small Claims Process for Claims Below $10,000 filed in the Justice Court in the State of Utah
The most accessible for many people is the small claim process in Utah. Anybody can file a small claims action if the person’s claim is below $10,000 excluding attorney’s fees, interest, and cost. The small claims process is an efficient and cost-effective way to resolve disputes. There is no discovery. It is expedited in nature. For the most part, small claims trials are very short, usually only taking a portion of a day. Because of the expedited nature, people can have their rights vindicated or decided relatively quickly. If a person decides to take the small claims route, each party is allowed a review de noveau in the district court, which means basically that if you feel that the small claims judge got it wrong, you could have a district court judge hear the matter fresh.
People Have a Right to File Pro Se and Represent Themselves in Civil as Well as Criminal Cases
If the potential damages are over $10,000 or if the plaintiff wants what is called equitable relief, meaning the plaintiff seeks something other than money, like forcing somebody to do something or refraining from doing something, the plaintiff can choose to file in the district court. Each person has every right to, again, file pro se and represent themselves. Indeed, a lot of people represent themselves in family law cases such as custody, alimony, or divorce on their own. Likewise, many people choose to represent themselves in regular civil matters, and even choose to mount their own defense against criminal charges.
There are Numerous Pitfalls and Consequences in Representing Yourself in a Civil or Criminal Case
The danger of representing yourself, though, is there are a lot of pitfalls, even for attorneys, in the litigation process. There can be deadlines, which are called jurisdictional deadlines, meaning if you blow them, your case is done. It is dead. Or, if you do not comply with court orders, you can be sanctioned and you could have certain discovery that you need or certain evidence excluded from trial. Likewise, there are a lot of good attorneys out there that know how to write, that know how to present arguments to the courts, and that have a good relationship with judges. So, it can make a lot of sense to, if you are going to file a case, have an attorney involved that could help you navigate the process and get you through to hopefully either a settlement, a dismissal, or a verdict, depending upon the type of matter.
In Utah, the Ethical Rules Allow Attorneys to Provide Unbundled Legal Services
When considering to file a case or defend a criminal matter, a potential litigant should consider two other points. First, the ethical rules allow attorneys to do what is called unbundled legal services. Basically, you can ask an attorney to review a complaint, and the attorney does not have to put their name on the top of the complaint or otherwise represent the party for the remainder of the litigation. To that end, an attorney can also be retained to handle one aspect of a case, such as the filing or defense of a motion. This is known as a “limited appearance.” So, if you cannot hire an attorney to represent you in the whole matter because you cannot afford it, you can at least consult with some attorneys that offer unbundled legal services.
Second, potential litigants need to be cognizant of what I call “pennywise, pound foolish.” This basically means that a person wants to either file a case pro se, defend a civil lawsuit on his or her won, or mount his or her own criminal defense with no other reason other than he or she believes that an attorney would be too expensive. The problem arises when the litigation is commenced, and the dispute is being actively litigated, the person finds out that the process is overwhelming. The person then decides to hire an attorney ultimately spending more money than the person would have in the first instance because the attorney has to get caught up to speed. Likewise, certain things may have already happened that negatively affect the person’s case and of which the attorney cannot fix. In other words, at the outset, I believe it makes sense to at least consult with an attorney to determine whether hiring an attorney is truly too expensive.
By Not Retaining Proper Counsel in the Justice Court, a Lot of Strategic Advantages are Lost
In civil cases, but probably even moreso in criminal cases, we have had clients come in that have been convicted in the justice court and they are looking to have us help them on the appeal in the district court. By not having the proper counsel in the justice court, the person has already lost a lot of strategic advantages. So, while it might be expensive for potential litigants to hire attorneys in the first instance, a party may ultimately hire an attorney spending the same amount of money while potentially losing strategic advantages by not hiring an attorney in the first instance.