Appealing from Magisterial District (Small Claims) Court in PA
Erik
Court, but I've had a couple lawyers mention that my opponent could
appeal for almost nothing, at which point I will have around $4,000 in
legal fees as it goes to appeal in Common Pleas Court. ("real court",
as one of them said.)
I've tried to clarify, that in appeal I will need a lawyer but my
opponent will NOT. The response I got, if I understood it correctly,
was the only way he would need to have a lawyer is if I file the suit
INITIALLY in Common Pleas Court, with a lawyer, and skip Magisterial
District Court altogether.
Am I understanding correctly? Is this right?
And if it is true, why does anyone ever sue in Magisterial District
Court, if they would be at such a huge disadvantage if the other party
appeals?
Barry Gold
I'm in California, not PA, but this doesn't make sense to me.
As a general rule, *anybody* can represent themselves in any court at
any level. If you're fool enough, you can go into normal court, lose
there, appeal to the next level, ... and eventually take your case to
the US Supreme Court -- and, if USCS grants "cert", appear there pro se
to argue your appeal.
Now, as I said, I'm not familiar with PA law (and I'm not a lawyer),
but here's the way it would work in CA:
1. You file in Small Claims Court. At this point, the defendant has
the right (if he chooses), to "remove" the case to a normal court
(Municipal Court if under $7,500, Superior Court if over).
2. If you win, the defendant can "appeal" the case to the normal court
(Municipal or Superior) for a trial "de novo" (as if new). That means
the whole case gets heard again. *But*, although the defendant will
have the right to a jury trial if he really wants it, the case will be
tried under the relaxed rules of Small Claims court.
If the case is moved to regular court (either at step 1 or step 2),
either or both of you _can_ hire a lawyer to represent you. Or you
can represent yourself just as you did in Small Claims.
Note that if one of you hires a lawyer, whichever one appears pro se
will be at a disadvantage -- the lawyer knows a lot more about how to
prove a case than a layman. But laymen appearing pro se *have* been
known to win, even against expert lawyers. Obviously, the pro se's
chances are better with a relatively simple case(*) than with a
complicated one.
(*) Simple case: He promised to pay $2000 for my used car, I handed
him the car, the keys, and the title, and he never paid. Or, He ran a
stop sign and hit my car, causing $3,000 in damage to the car
(estimate from a body shop presented), and bodily injury to the tune
of $2,500 (hospital and doctor bills presented). If you have
witnesses, a written contract, and/or a police report to bolster your
case, it's going to be hard for even the best lawyer to beat you.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
blog: http://goldslaw.livejournal.com/
nos...@isp.com
>I'm filing a lawsuit, in PA. I could file it in Magisterial District
>Court, but I've had a couple lawyers mention that my opponent could
>appeal for almost nothing, at which point I will have around $4,000 in
>legal fees as it goes to appeal in Common Pleas Court. ("real court",
>as one of them said.)
>
>I've tried to clarify, that in appeal I will need a lawyer but my
>opponent will NOT. The response I got, if I understood it correctly,
>was the only way he would need to have a lawyer is if I file the suit
>INITIALLY in Common Pleas Court, with a lawyer, and skip Magisterial
>District Court altogether.
>
>Am I understanding correctly? Is this right?
If you are confused about what the couple of lawyer you've consulted
said, it is puzzling why you pose these questions here apparently
instead of requesting clarification directly from them or at least
from whichever of them appears to be most knowledgeable and practical
(especially if, as a reader of your recent postings/queries perhaps
ought assume, you discussed your would-be lawsuit with them in more
factual detail than you provided in your m.l.m. postings).
All you realistically enable by your query formulated as above is
speculation that you may not have understood correctly (and I do guess
that you did not understand) what you were told because, among other
things, what you say above fails to make clear why, if (as you seem to
indicate) your prospective defendant is a natural person, not a
corporate or like entity, he would "need [SIC] to have a lawyer"
for/at trial or on appeal if, as an individual may do, he chooses
self-representation even if you were to sue in common pleas court.
>And if it is true, why does anyone ever sue in Magisterial District
>Court, if they would be at such a huge disadvantage if the other party
>appeals?
If you were to sue in an actually well-focused and otherwise
practical, i.e., well-prepared and persuasive, manner, what you
presuppose to be a disadvantage may not eventuate. That is, an
assumption apparently embedded in this question is that an appeal (if
taken) would be probably successful for your adversary rather than for
you, although this is not necessarily so. Nor is it self-evident as
you nonetheless evidently believe that self-representation by your
prospective defendant would be detrimental to you or that his being
represented by an attorney would be helpful to you.
In any case (and, indeed, in most such cases) the most common answers
to this question are that the dollar amount at issue in a small claims
lawsuit ordinarily makes it not worthwhile to sue in common pleas
court and, separately but often relatedly, suing on a small claim in
the magisterial district court ordinarily is the over-all quickest and
least inefficient/costly means of resolving what you appear in your
apparently related postings to have indicated is an actually
(comparatively) small claim even if its nonpayment is emotionally
irksome for you.
You may also want to address as you apparently have not yet done what
may become related questions whether your lawsuit will be determined
by compulsory arbitration, in which case your ruminations about
"fraudulent inducement":yes?/no? and "fraud":yes?/no? presumably would
become essentially irrelevant (in light, again, of what is the "gist"
of your contemplated litigation) or, if you may and do sue in the
first instance in common pleas court, whether a common pleas judge is
or is not likely to give you more attention and to be fairer to you
that would be the case in a magisterial district court lawsuit
(whether or not resolved by compulsory arbitration procedures).
Bob
wrote:
>I'm filing a lawsuit, in PA. I could file it in Magisterial District
>Court, but I've had a couple lawyers mention that my opponent could
>appeal for almost nothing, at which point I will have around $4,000 in
>legal fees as it goes to appeal in Common Pleas Court. ("real court",
>as one of them said.)
>
>I've tried to clarify, that in appeal I will need a lawyer but my
>opponent will NOT. The response I got, if I understood it correctly,
>was the only way he would need to have a lawyer is if I file the suit
>INITIALLY in Common Pleas Court, with a lawyer, and skip Magisterial
>District Court altogether.
>
>Am I understanding correctly? Is this right?
I don't know anything about Pennsylvania court procedure.
Here's a website that lays out the basics for small claims in
Pennsylvania (don't know if it's right):
http://www.consumeraffairs.com/consumerism/small_pa.html
Generally, any party in a civil lawsuit can represent himself.
Why would it cost you $4K in legal fees for a small claims action that
is limited to $8K in damages? The whole point of going to small
claims is to resolve the dispute more easily, more quickly, and
without an attorney.
Sure, the defendant can appeal, but he'll have to pay a fee, and both
of you will go through more complex procedure at the next level. If
the amount in dispute is small, why would he want to do that? Of
course, people are not always rational.
Even if you file initially in the Court of Common Pleas, the defendant
can appeal if he loses.
John F. Carr
Erik <eri...@gmail.com> wrote:
>I'm filing a lawsuit, in PA. I could file it in Magisterial District
>Court, but I've had a couple lawyers mention that my opponent could
>appeal for almost nothing, at which point I will have around $4,000 in
>legal fees as it goes to appeal in Common Pleas Court. ("real court",
>as one of them said.)
>
>I've tried to clarify, that in appeal I will need a lawyer but my
>opponent will NOT. The response I got, if I understood it correctly,
>was the only way he would need to have a lawyer is if I file the suit
>INITIALLY in Common Pleas Court, with a lawyer, and skip Magisterial
>District Court altogether.
Are you suing a corporation, or is your corporation filing a suit?
That is a key bit of information missing from your question.
--
John Carr (j...@mit.edu)
Stuart A. Bronstein
> 2. If you win, the defendant can "appeal" the case to the normal
> court (Municipal or Superior) for a trial "de novo" (as if new).
> That means the whole case gets heard again. *But*, although
> the defendant will have the right to a jury trial if he really
> wants it, the case will be tried under the relaxed rules of
> Small Claims court.
Just a clarification. If this is California, in a trial de novo
from a small claims court judgment, a litigant is entitled to have
a lawyer, but is not entitled to a jury. Further the case cannot
be appealed further.
> Note that if one of you hires a lawyer, whichever one appears
> pro se will be at a disadvantage -- the lawyer knows a lot more
> about how to prove a case than a layman. But laymen appearing
> pro se *have* been known to win, even against expert lawyers.
> Obviously, the pro se's chances are better with a relatively
> simple case(*) than with a complicated one.
In the small claims appeals I've seen, the court continued to treat
the case informally and pretty much informally and continued to
ignore the lawyers.
Cy Pres
> 2. If you win, the defendant can "appeal" the case to the normal court
> (Municipal or Superior) for a trial "de novo" (as if new). That means
> the whole case gets heard again. *But*, although the defendant will
> have the right to a jury trial if he really wants it, the case will be
> tried under the relaxed rules of Small Claims court.
I'm not sure if you're specifically talking about Pennsylvania,
but in many states, the "trial de novo" is not a rehearing of the case.
The superior court does look at the evidence anew, but limits itself to
a review of the existing record from the small claims court. I.e. reviews
the transcript, any evidence of record, the original ruling, and the legal
arguments of the litigants.
LDC
wrote:
>1. You file in Small Claims Court. At this point, the defendant has
>the right (if he chooses), to "remove" the case to a normal court
>(Municipal Court if under $7,500, Superior Court if over).
California Municipal Courts were merged into the Superior Courts as
a result of the passage of Prop 220 in 1998. The proposition was an
enabling act that required an affirmative vote by the involved
judges in each county to effect the change in their county. In a
cursory look, I did not find any of the 58 counties that failed to
implement the consolidation.
Daniel R.Reitman
wrote:
>I'm in California, not PA, but this doesn't make sense to me.
>
>As a general rule, *anybody* can represent themselves in any court at
>any level. If you're fool enough, you can go into normal court, lose
>there, appeal to the next level, ... and eventually take your case to
>the US Supreme Court -- and, if USCS grants "cert", appear there pro se
>to argue your appeal.
>
>Now, as I said, I'm not familiar with PA law (and I'm not a lawyer),
>but here's the way it would work in CA:
>. . . .
Major alert: Small claims procedure is absolutely not uniform. You
can only rely on your own state's procedures.
For example, in Oregon, there is no appeal from the ruling in small
claims, but in most cases, the plaintiff has the option to sue on
regular docket and the defendant has the option to request the case be
heard on the regular docket. When the case is sent to the regular
docket, the case is sent to mandatory arbitration, from which either
party has the right to ask for a trial de novo after the arbitrator's
ruling (but then risks an award of attorney fees if they do not get a
better result).
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY CLIENT RELATIONSHIP
INTENDED.
Hilary
>
> And if it is true, why does anyone ever sue in Magisterial District
> Court, if they would be at such a huge disadvantage if the other party
> appeals?
There may be a damages request cut-off. While not positive, I'm fairly
sure (at least in the mid-2000's) you could not ask for damages over
$8,000 in Magisterial District Court. Whether or not this implies that
you could not ask for less than that amount in Courts of Common Pleas,
I don't know. There may also be steeper filing fees to initiate a suit
for, like, $273.68 in damages (figure arbitrary!) if you are file for
under $8,000 in CCP. Additionally, if suing for under $8,000 in a
Court of Common Pleas is possible, you may nevertheless experience
resentment from court staff, possibly including the judge--for the
reason that you're not "respecting the system."
I recently was sued in Magistrate Court and filed a counterclaim. I
paid no filing fee at all to begin the counterclaim, and I won a $500
award. So you're not wrong in being dubious.
Mike Jacobs
> I'm not sure if you're specifically talking about Pennsylvania,
> but in many states, the "trial de novo" is not a rehearing of the case.
Citation? I disagree - that's _exactly_ what "trial de novo"
_means_, a complete re-hearing of the case, a "new trial." Anything
else would not be "de novo" - _new_ presentation of evidence - but
would simply be a review of the evidence previously admitted at the
first trial, and the rulings made by the first judge, as in any other
"on the record" appeal.
> The superior court does look at the evidence anew, but limits itself to
> a review of the existing record from the small claims court.
That would be an appeal "on the record," _not_ "de novo" even if that
on-the-record review is performed by a court (e.g. superior court)
which usually has de novo trial duties (in cases originally instituted
there) rather than appellate duties (on cases appealed from below).
> �I.e. reviews
> the transcript, any evidence of record, the original ruling, and the legal
> arguments of the litigants.
If there is _any_ jurisdiction in the USA or elsewhere that uses the
term of art "trial de novo" or "de novo appeal" to refer to the kind
of appeal you just described, they are using the term incorrectly.
Do you have a citation to any statute or rule, anywhere, that uses the
term that way?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Bob
>On 2010-03-19 12:14:17 -0400, Barry Gold said:
>
>> 2. If you win, the defendant can "appeal" the case to the normal court
>> (Municipal or Superior) for a trial "de novo" (as if new). That means
>> the whole case gets heard again.
>
>I'm not sure if you're specifically talking about Pennsylvania,
>but in many states, the "trial de novo" is not a rehearing of the case.
>The superior court does look at the evidence anew, but limits itself to
>a review of the existing record from the small claims court. I.e. reviews
>the transcript, any evidence of record, the original ruling, and the legal
>arguments of the litigants.
Barry said he was talking about California, and in California there is
a hearing on an appeal to the Superior Court (as someone else pointed
out, there is no municipal court). CCP 116.770.
Mike Jacobs
> Are you suing a corporation, or is your corporation filing a suit?
> That is a key bit of information missing from your question.
Good point. OP didn't mention anything about corporations at all, on
either side, but it's quite possible that when he said "_I_ am filing
a lawsuit" he meant that an ENTITY WHICH HE CONTROLS is actually the
party filing the lawsuit, or that he is an individual suing a
corporation rather than suing another individual. That would be a
different ball of wax.
Some states _forbid_ anyone, even corporations, to have a lawyer in
Small Claims. Other states (MD included, and probably most of the
states in the first category as well) _require_ a corporation to have
a lawyer in any suit, _except_ in Small Claims. Other states (again,
including some subset of both of the prior categories) permit _any_
litigant - corporate or otherwise - who doesn't want to be subjected
to the relaxed Small Claims rules, to file initially in the higher
level trial court of general jurisdiction, or to remove a Small Claims
case to that higher court on timely demand before trial, so that it
will be tried in the higher court only, not in Small Claims (which may
mean that the party so removing the case can _force_ a corporate
opponent to obtain a lawyer for the case, rather than having some
officer or manager represent it at trial).
For cases that _are_ originally brought in Small Claims and _do_ get
tried there, some states allow the losing party a "de novo" appeal (a
brand-new trial, in the higher-level court) while other states limit
the loser to an "on the record" appeal (no second-bite-of-the-apple as
far as presentation of evidence goes, but the rulings of the Small
Claims judge on the law, the evidence, and the weight of the evidence
submitted below, will all be reviewed for their legal correctness and/
or abuse of discretion).
So, YMMV. If OP in fact spoke to a local lawyer (or more than one)
and is confused about what they told him, I too am puzzled why he
didn't simply go back to the lawyer(s) and ask for clarification.
Stuart A. Bronstein
> Barry said he was talking about California, and in California
> there is a hearing on an appeal to the Superior Court (as
> someone else pointed out, there is no municipal court). CCP
> 116.770.
That's right. But there were a couple of things that Barry said
about CA small claims that weren't completely accurate. He said,
> 1. You file in Small Claims Court. At this point, the defendant
> has the right (if he chooses), to "remove" the case to a normal
> court (Municipal Court if under $7,500, Superior Court if over).
As far as I'm aware there is no automatic right to remove a small
claims case to superior court. To do that you have to file a
counter-claim in excess of the small claims court's jurisdiction.
> 2. If you win, the defendant can "appeal" the case to the normal
> court (Municipal or Superior) for a trial "de novo" (as if new).
> That means the whole case gets heard again. *But*, although the
> defendant will have the right to a jury trial if he really wants
> it, the case will be tried under the relaxed rules of Small
> Claims court.
There is no right to a jury trial in a small claims appeal.
Cy Pres
> On Mar 20, 12:45 pm, Cy Pres <c.p...@yahoo.com> wrote:
>> I'm not sure if you're specifically talking about Pennsylvania,
>> but in many states, the "trial de novo" is not a rehearing of the case.
>
> Citation? I disagree - that's _exactly_ what "trial de novo"
> _means_, a complete re-hearing of the case, a "new trial." Anything
> else would not be "de novo" - _new_ presentation of evidence - but
> would simply be a review of the evidence previously admitted at the
> first trial, and the rulings made by the first judge, as in any other
> "on the record" appeal.
You're wrong at least with regard to New Jersey, and other state I
could probably find.
What New Jersey calls a "trial de novo," using that phrase, is a new
"trial," not bound
by the factual or legal findings of the court below, but based on the evidence
of record in that lower court.
This is how it works for small claims and other minor offenses like
disorderly persons
offenses.
> If there is _any_ jurisdiction in the USA or elsewhere that uses the
> term of art "trial de novo" or "de novo appeal" to refer to the kind
> of appeal you just described, they are using the term incorrectly.
If they're the court, they can call it what they like. The full phrase
is generally
"trial de novo on the record." There is also a "plenary trial de
novo," which is
what you are thinking about, but which is ordinarily not done with small claims
in New Jersey.
> Do you have a citation to any statute or rule, anywhere, that uses the
> term that way?
No, but I've seen it occur.
Mike Jacobs
> On 2010-03-21 12:40:47 -0400, Mike Jacobs said:
> > On Mar 20, 12:45 pm, Cy Pres <c.p...@yahoo.com> wrote:
> >> I'm not sure if you're specifically talking about Pennsylvania,
> >> but in many states, the "trial de novo" is not a rehearing of the case.
>
> > Citation? I disagree - that's _exactly_ what "trial de novo"
> > _means_, a complete re-hearing of the case, a "new trial." Anything
> > else would not be "de novo" - _new_ presentation of evidence - but
> > would simply be a review of the evidence previously admitted at the
> > first trial, and the rulings made by the first judge, as in any other
> > "on the record" appeal.
>
> You're wrong at least with regard to New Jersey, and other state I
> could probably find.
I was relying on a GENERAL understanding of what "trial de novo" and
"appeal de novo" meant. From my handy hard copy of Black's Law
Dictionary (West, 5th Ed 1979) I found at p. 392:
"De novo. ... Anew; afresh; a second time.
"De novo trial. Trying a matter anew; the same as if it had not been
heard before and as if no decision had been previously rendered.
Farmingdale Supermarket, Inc. v. U.S., D.C.N.J., 336 F.Supp. 534,
536."
Isn't it interesting that Black's used a New Jersey case as their
authority for defining "de novo trial" my way instead of your way?
> What New Jersey calls a "trial de novo," using that phrase, is a new
> "trial," not bound
> by the factual or legal findings of the court below, but based on the evidence
> of record in that lower court.
Okay, I Googled "new jersey trial de novo" and, after weeding through
the blog posts and other secondary sources, found this cite to actual
NJ state statutory law at
http://law.onecle.com/new-jersey/2a-administration-of-civil-and-criminal-justice/23a-28.html
-
"2A:23A-28. Trial de novo
No statements, admissions or testimony made at the arbitration
proceedings, nor the arbitration decision, as confirmed or modified by
the court, shall be used or referred to at the trial de novo by any of
the parties, except that the court may consider any of those matters
in determining the amount of any reduction in assessments made
pursuant to section 10 of this act.
L. 1987,c.329, s.9."
That sounds like what _I_ meant by "trial de novo" The testimony and
other statements made in the prior proceeding are NOT to be "used or
referred to at the trial de novo by any of the parties" - the legal
fiction is, as Black's noted, as if the former trial NEVER HAPPENED.
Rather, the witnesses will have to (and thus also get a _chance_ to)
testify ANEW, and the parties also get the chance to submit ADDITIONAL
testimonial and documentary evidence at the de novo trial, not just
the same evidence that was presented below. In addition to asking
the same witnesses different questions, a party may, frex, call a
completely new witness, or introduce a completely new document into
evidence at a _de_novo_ trial..
> This is how it works for small claims and other minor offenses like
> disorderly persons offenses.
I'm still waiting for an actual citation.
I did also check the official NJ court forms website (found on the
previously mentioned Google search I ran) at
http://www.judiciary.state.nj.us/forms.htm
and the only form listed there which deals with a "de novo trial
request" was in the Arbitration section - which matches (apparently)
the statute cited above, in which de novo trials are the norm from an
Arbitration proceeding. The form itself is at
http://www.judiciary.state.nj.us/civil/forms/10768.pdf
Are "Small Claims" cases in NJ considered "Arbitrations?" Apparently
not, since the NJ judiciary's forms website also has a _separate_
section for Small Claims forms, which says nothing about De Novo
appeals. Clicking on "Small Claims - Complete Packets (forms and
instructions)" at the NJ forms website does link to a very handy page
of forms for _pro_se_ litigants at http://www.judiciary.state.nj.us/prose/index.htm#smallclaims,
in which I found a "Small Claims FAQs" page at
http://www.judiciary.state.nj.us/civil/civ-02.htm which I commend to
your reading, particularly the last question, "Can I appeal?" Here's
what the NJ judiciary says in answer to that:
<BEGIN QUOTE>
"If you, as a plaintiff or a defendant, disagree with the court's
decision, you may appeal the case to the Appellate Division of the
Superior Court within 45 days from the date of judgment. You must file
a Notice of Appeal, a copy of the Request for Transcript, and a Case
Information Statement within the 45 days with the Clerk of the
Appellate Division located at the Hughes Justice Complex, Trenton) and
deliver copies to:
* All parties to the case who appeared in court.
* The Clerk of the Special Civil Part from which the appeal is
taken.
* The judge who decided the case.
"You must pay a filing fee of $200 with the Notice of Appeal and
deposit $300 with the Clerk of the Appellate Division within 30 days
of the Notice of Appeal. This deposit may be used to pay settlement or
court costs if the appeal is lost. If the appeal is successful, the
deposit will be refunded.
"You also must obtain a transcript (a copy of the record of what
happened in court) of the trial. The request for a transcript should
be made to the Office of the Clerk of the Special Civil Part in the
county in which the case was tried. You must deposit with the Clerk
the estimated cost of the transcript (as determined by the court
reporter, Clerk, or agency preparing it) or $300 for each day or part
of a day of the trial. You must file three copies of the transcript
with the Office of the Clerk of the Appellate Division. Questions
concerning an appeal should be directed to the Office of the Clerk of
the Appellate Division at (609) 292-4822, or to an attorney."
<END QUOTE>
That sure sounds like an "on-the-record appeal" to me. It also does
not anywhere use THE TERM "de novo" at all. Maybe some STATUTE does,
somewhere, but IF SO, that's the citation I'm still waiting for from
you, Cy.
> > If there is _any_ jurisdiction in the USA or elsewhere that uses the
> > term of art "trial de novo" or "de novo appeal" to refer to the kind
> > of appeal you just described, they are using the term incorrectly.
>
> If they're the court, they can call it what they like.
They should call it what their _legislature_ or other rule-making body
said they should call it, or they are using the term incorrectly.
And if that body picks a name for that process that is confusingly
similar to, but different in some important way from, the way almost
EVERYBODY ELSE uses the same term, then I am entitled to the opinion
that doing so is A Bad Idea (wrong, stupid, whatever adjective you
want to use) even if it is perfectly LEGAL in that jurisdiction to
call that process by that name. Calling something the "Ministry of
Truth" doesn't make it so, if the job of that ministry is to propagate
lies.
Calling a tail a leg doesn't mean a dog has 5 legs, even if the
Ministry of Truth is who says it is so.
> The full phrase is generally "trial de novo on the record."
That's a very different ball of wax than what you said originally.
Apart from being an oxymoron (a trial is EITHER "de novo" OR "on the
record," not both), it is (if it exists) a SUBSET of the general
concept of "trial de novo" which, as you note below, is recognized in
NJ just as it is elsewhere:
> There is also a "plenary trial de novo," which is
> what you are thinking about,
Yes, it is. And apparently NJ also has such a concept in their laws.
> but which is ordinarily not done with small claims
> in New Jersey.
That's fine, and I'm not questioning your personal knowledge of actual
NJ procedure; I'm just questioning the wisdom of certain NJ officials
(apparently) calling something a "trial de novo" when it actually
ISN'T "de novo," when it is NOT taking place as if the prior
proceeding NEVER HAPPENED, when it in fact DOES refer to the evidence
submitted at the prior proceeding and ONLY that evidence, in making
its decision. That is in fact AN ORDINARY APPEAL ON THE RECORD, with
perhaps the slight additional feature that the appellate court is
authorized to re-consider _DE_NOVO_ the weight of the ALREADY EXISTING
evidence (even though they were not there to listen to and observe
demeanor evidence, etc. as the lower trial court did - unless they are
watching the previous trial on videotape) in addition to the lower
judge's determination of its bare legal sufficiency and the other
legal rulings made by the judge below.
> > Do you have a citation to any statute or rule, anywhere, that uses the
> > term that way?
>
> No, but I've seen it occur.
I have no doubt that _many_ things occur in NJ (and elsewhere) that do
not quite comply with statutory or rule-based requirements. That
wasn't what I was asking, and as a newly minted fellow lawyer (or are
you still a law student?) you certainly should know that there is
often a gap between the law and actual practice. I was asking for a
citation to the law in NJ that makes this practice the norm for small
claims appeals, AND THAT CALLS IT "trial de novo" or "de novo trial."
Erik
> That is a key bit of information missing from your question.
This isn't certain, but AFAIK I will be suing an individual. But the
individual hired me in connection with his corporation, so my lawyer
(once I hire him -- probably tomorrow) might tell me we should sue the
corporation rather than the individual. I doubt it though. I know
the individual has assets. The corporation for all I know may have
none.
Mike
With a regular appeal (like if I was tried for theft and appealed the
conviction) they only look at if a error was made in the law (such as if
the gun that was introduced was seized illegally and should have been
suppressed), in a trial de novo, they'd re-examine the gun itself and
read the transcript of the original testimony about it and decide what
that meant and in a re-hearing, they'd also listen to the new witness
that talked about the gun and who wasn't with-in 500 miles of the court
room during the original trial, right? Is that a fair example of the
differences?
Erik
> If you are confused about what the couple of lawyer you've consulted
> said, it is puzzling why you pose these questions here apparently
> instead of requesting clarification directly from them or at least
> from whichever of them appears to be most knowledgeable and practical
I hopefully will be able to tomorrow. So far I have not actually
hired one, and they are understandably not going to be receptive to
extended questioning off the clock.
>
> All you realistically enable by your query formulated as above is
> speculation that you may not have understood correctly (and I do guess
> that you did not understand) what you were told because, among other
> things, what you say above fails to make clear why, if (as you seem to
> indicate) your prospective defendant is a natural person, not a
> corporate or like entity, he would "need [SIC] to have a lawyer"
> for/at trial or on appeal if, as an individual may do, he chooses
> self-representation even if you were to sue in common pleas court.
In a regular suit in common pleas court, my understanding is that a
lawyer is required because there are complicated rules of procedure,
but in the trial and in the pre-trial that a non-lawyer would not be
knowledgeable enough to adhere to.
> If you were to sue in an actually well-focused and otherwise
> practical, i.e., well-prepared and persuasive, manner, what you
> presuppose to be a disadvantage may not eventuate. That is, an
> assumption apparently embedded in this question is that an appeal (if
> taken) would be probably successful for your adversary rather than for
> you, although this is not necessarily so. Nor is it self-evident as
> you nonetheless evidently believe that self-representation by your
> prospective defendant would be detrimental to you or that his being
> represented by an attorney would be helpful to you.
The scenario presented to me by one of the lawyers was that I would
present the case in Magisterial court, win my judgment for $6,000, he
would appeal "for almost nothing". At that point I would incur legal
fees of $3,000-$4,000 to present my case in "real court". My concern
is not that I will not win. My concern is that I'll only end up
getting $2,000 after legal fees, while the other part has no such
financial disadvantage to going through this process. Pay me
willingly now, or unwillingly later, he'll still only have to pay
around $6,000. He has no incentive to settle before trial, and I
stand to reclaim less than half of what I'm owed.
When I asked the lawyer about this, he said that the ONLY way he would
have to hire a lawyer is if I took the initial step of hiring a lawyer
and filing an official complaint through a lawyer.
> You may also want to address as you apparently have not yet done what
> may become related questions whether your lawsuit will be determined
> by compulsory arbitration, in which case your ruminations about
> "fraudulent inducement":yes?/no? and "fraud":yes?/no? presumably would
> become essentially irrelevant (in light, again, of what is the "gist"
> of your contemplated litigation) or, if you may and do sue in the
> first instance in common pleas court, whether a common pleas judge is
> or is not likely to give you more attention and to be fairer to you
> that would be the case in a magisterial district court lawsuit
> (whether or not resolved by compulsory arbitration procedures).
I have gathered that there is no way to gain any damages in the civil
suit because of the fraud issue. However, the lawyer I am planning on
hiring has indicated that there is a PA statute related to employment
matters that may let me claim legal fees.
Erik
> As a general rule, *anybody* can represent themselves in any court at
> any level.
I'm familiar with cases where it was not allowed -- or where the party
was required to have a lawyer to assist him with procedure.
> *But*, although the defendant will
> have the right to a jury trial if he really wants it, the case will be
> tried under the relaxed rules of Small Claims court.
This makes what the lawyer told me make some sense. If the appeal to
Common Pleas Court will be under "relaxed rules", that may enable the
respondent to be able to get by without a lawyer.
Stuart A. Bronstein
> Cy Pres <c.p...@yahoo.com> wrote:
>> Mike Jacobs said:
>>
>> > Citation? I disagree - that's _exactly_ what "trial de
>> > novo" _means_, a complete re-hearing of the case, a "new
>> > trial." Anything else would not be "de novo" - _new_
>> > presentation of evidence - but would simply be a review of
>> > the evidence previously admitted at the first trial, and the
>> > rulings made by the first judge, as in any other "on the
>> > record" appeal.
>>
>> You're wrong at least with regard to New Jersey, and other
>> state I could probably find.
Mike's definition is the only one I've ever heard.
> I was relying on a GENERAL understanding of what "trial de novo"
> and "appeal de novo" meant.
>
> Okay, I Googled "new jersey trial de novo" and, after weeding
> through the blog posts and other secondary sources, found this
> cite to actual NJ state statutory law at
> http://law.onecle.com/new-jersey/2a-administration-of-civil-and-c
> riminal-justice/23a-28.html -
I agree with your point, but trial de novo after an arbitration
would be entirely different, so I don't think it makes the point.
A review of New Jersey cases indicates that they have a procedure
called "trial de novo on the record." That appears to be what he's
talking about. This procedure seems to apply only in criminal
cases. But even there the defendant may have the right to augment
the record or introduce new evidence.
The purpose of the trial de novo on the record is to protect
defendants in cases where non-lawyer police draw up the criminal
complaint and the case is heard by a non-lawyer judge.
In other cases the "on the record" de novo trial seems to apply
only when all the parties stipulate.
They apparently refer to the traditional trial de novo as a plenary
trial de novo.
> I'm still waiting for an actual citation.
Ok, here's a citation: New Jersey Statutes 17:27A-12:
"Any person aggrieved by any act, determination, rule, regulation,
or order or any other action of the commissionerpursuant to this
chapter may appeal therefrom to the SuperiorCourt. The court shall
conduct its review without a jury and by trial de novo, except that
if all parties, including the commissioner, so stipulate, the
review shall be confined to the record."
That's a specialty statute, but it implies that a trial de novo on
the record is the exception rather than the rule.
Also see State of NJ v. Joas, http://snipurl.com/v19cm
Cy
Mike Jacobs <mjaco...@gmail.com> wrote:
>> but which is ordinarily not done with small claims
>> in New Jersey.
>That's fine, and I'm not questioning your personal knowledge of actual
>NJ procedure; I'm just questioning the wisdom of certain NJ officials
>(apparently) calling something a "trial de novo" when it actually
>ISN'T "de novo," when it is NOT taking place as if the prior
>proceeding NEVER HAPPENED, when it in fact DOES refer to the evidence
>submitted at the prior proceeding and ONLY that evidence, in making
>its decision. That is in fact AN ORDINARY APPEAL ON THE RECORD, with
>perhaps the slight additional feature that the appellate court is
>authorized to re-consider _DE_NOVO_ the weight of the ALREADY EXISTING
>evidence (even though they were not there to listen to and observe
>demeanor evidence, etc. as the lower trial court did - unless they are
>watching the previous trial on videotape) in addition to the lower
>judge's determination of its bare legal sufficiency and the other
>legal rulings made by the judge below.
Yes, on giving the matter of thought, it does seem an unusual term to
apply, although I do think this sort of review has at least some of the
elements of what is generally considered to be a trial de novo. That is, the
appeals court (which is generally the Superior Court, Law Division) does not
give any deference to either the factual or legal findings of the small
claims court.
>> > Do you have a citation to any statute or rule, anywhere, that uses the
>> > term that way?
>> No, but I've seen it occur.
>I have no doubt that _many_ things occur in NJ (and elsewhere) that do
>not quite comply with statutory or rule-based requirements. That
>wasn't what I was asking, and as a newly minted fellow lawyer (or are
>you still a law student?) you certainly should know that there is
>often a gap between the law and actual practice. I was asking for a
>citation to the law in NJ that makes this practice the norm for small
>claims appeals, AND THAT CALLS IT "trial de novo" or "de novo trial."
Still a law student, at least for a few weeks. I will note that the
relevant rules in New Jersey appears to be N.J. Court Rule 3:23, and does NOT
call it a "trial de novo," but simply calls it "de novo review on the
record," which comports more closely to your view of the matter.
The New Jersey rule establishing this process has an exception for
plenary review, but generally only when the "on the record" review
process is impossible or prejudicial due to a "substantially unintelligible"
record.
Washington State's rules explicitly describe this sort of review as a
"trial de novo on the record."
---
Wash. Court Rule 75(c), for example, describes the process in this
manner:
(c) Small Claims Appeals; Trial De Novo on the Record. Small
claims appeals pursuant to RCW 12.40 shall be tried by the superior
court de novo on the record. Within 14 days after the notice of appeal
has been filed in a small claims proceeding, appellant shall cause to
be filed with the clerk of the superior court a verbatim electronic
recording of the trial of the matter in district court and any exhibits
from the trial. The electronic recording shall be made and certified
by the district court to be correct upon the payment of the fees
allowed by law therefor.
---
While it's arguable that this is an abuse of the phrase, it seems to
have become common use in many jurisdictions. I personally encountered the
phrase "trial de novo on the record" for this process in a class on New
Jersey Appellate Practice, from the guy who wrote the leading practice
manual for New Jersey appellate practice.
Also, if you Google the phrase "trial de novo on the record" you will
find hits from New Jersey legal publications. Unsurprisingly, most of these
are unpublished decisions of little interest.
Bob
<mjaco...@gmail.com> wrote:
>I was relying on a GENERAL understanding of what "trial de novo" and
>"appeal de novo" meant. From my handy hard copy of Black's Law
>Dictionary (West, 5th Ed 1979) I found at p. 392:
>
>"De novo. ... Anew; afresh; a second time.
>
>"De novo trial. Trying a matter anew; the same as if it had not been
>heard before and as if no decision had been previously rendered.
>Farmingdale Supermarket, Inc. v. U.S., D.C.N.J., 336 F.Supp. 534,
>536."
[snip]
>Isn't it interesting that Black's used a New Jersey case as their
>authority for defining "de novo trial" my way instead of your way?
Well, in all fairness, that's not a New Jersey state case, just a poor
little United States District Court that is located in New Jersey.
>That sure sounds like an "on-the-record appeal" to me. It also does
>not anywhere use THE TERM "de novo" at all. Maybe some STATUTE does,
>somewhere, but IF SO, that's the citation I'm still waiting for from
>you, Cy.
[snip]
>> Cy: The full phrase is generally "trial de novo on the record."
>
>That's a very different ball of wax than what you said originally.
>Apart from being an oxymoron (a trial is EITHER "de novo" OR "on the
>record," not both), it is (if it exists) a SUBSET of the general
>concept of "trial de novo" which, as you note below, is recognized in
>NJ just as it is elsewhere:
Apparently, at least for certain criminal offenses, NJ calls a trial
de novo what others might call a review of the record. Indeed, the NJ
Supreme Court referred to it as a "a trial de novo . . . based on the
record." State v. Locurto, 157 N.J. 463, 467 (1999). Go figure.
In particular, the following rule -- which also uses the phrase "trial
de novo on the record" -- governs:
"If a verbatim record or sound recording was made pursuant to R. 7:8-8
in the court from which the appeal is taken, the original transcript
thereof duly certified as correct shall be filed by the clerk of the
court below with the criminal division manager's office, and a
certified copy served on the prosecuting attorney by the clerk of the
court below within 20 days after the filing of the notice of appeal or
within such extension of time as the court permits. In such cases the
trial of the appeal shall be heard de novo on the record unless it
shall appear that the rights of either party may be prejudiced by a
substantially unintelligible record or that the rights of defendant
were prejudiced below in which event the court to which the appeal has
been taken may either reverse and remand for a new trial or conduct a
plenary trial de novo without a jury. The court shall provide the
municipal court with reasons for the remand. The court may also
supplement the record and admit additional testimony whenever (1) the
municipal court erred in excluding evidence offered by the defendant,
(2) the state offers rebuttal evidence to discredit supplementary
evidence admitted hereunder, or (3) the record being reviewed is
partially unintelligible or defective. If the appellant, upon
application to the court appealed to, is found to be indigent, the
court may order the transcript of the proceedings below furnished at
the county's expense if the appeal involves violation of a statute and
at the municipality's expense if the appeal involves violation of an
ordinance. If no such record was made in the court from which the
appeal is taken, the appeal shall operate as an application for a
plenary trial de novo without a jury in the court to which the appeal
is taken."
New Jersey Rules of Court, Rule 3:23-8(a).
Anyway, you can feel free to comment on this as much as you wish,
Mike, but I doubt *I* will respond because (a) I'm not responsible for
NJ's rules or the terms used and (b) I'm already exhausted after
having read your response to Cy. :-) Knock yourself out.
Cy Pres
> Ok, here's a citation: New Jersey Statutes 17:27A-12:
> "Any person aggrieved by any act, determination, rule, regulation,
> or order or any other action of the commissionerpursuant to this
> chapter may appeal therefrom to the SuperiorCourt. The court shall
> conduct its review without a jury and by trial de novo, except that
> if all parties, including the commissioner, so stipulate, the
> review shall be confined to the record."
> That's a specialty statute, but it implies that a trial de novo on
> the record is the exception rather than the rule.
This is related to appeals from some sort of administrative agency.
The rule for small claims is different. See my other post on this
thread from what, by the time you read this one, will be yesterday.
The "trial de novo on the record," or as the actual rule entitles it,
de novo review on the record, is how appeals from small claims
judgments operate, with an exception for a "substantially
unintelligible record."