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A tipped scale
This is the way it was meant to be in small-claims courts: two people without lawyers facing one another. But reality has outstripped that notion. Defendants hardly ever have lawyers, while the corporate plaintiffs always do.
And the collection lawyers sometimes seem to direct the sessions.
In Framingham District Court last Sept. 14, the clerk's chair sat empty for 15 minutes after the scheduled 1:30 start of the session. Two collection attorneys moved to fill the gap, starting at 1:20. With clipboards and stacks of paperwork, they stood at the front of the courtroom, calling out defendants' names and asking them to come forward. They negotiated some cases and scheduled others for future dates, with no clerk present.
One defendant, Loretta Jenkins, was there on her lunch break. She discussed her debt with a lawyer, whom she thought was a district attorney. The lawyer told her not to bother waiting for the magistrate, but to ''get this over with and get back to work.'' So she signed a payment agreement and left.
By the time clerk-magistrate Thomas J. Begley entered the courtroom, the majority of the cases had been dispensed with. There was no one to ensure that the defendants had not been pressured into payments they could ill afford.
Judge Connolly, speaking generally, defended the right of litigants at any level of the court system to settle their differences without the supervision of a clerk or judge.
But Engler, the New England School of Law professor, said lawyers too often take advantage of debtors in such unsupervised conversations. It is, he said, ethically improper for plaintiff lawyers to advise debtors what to do. And it's up to the courts to monitor this behavior. ''The court has to give it something other than a rubber stamp,'' he said.
Begley, in an interview, said he didn't know that defendants were confused about the role of the lawyers. Subsequently, on April 25, he posted a letter to attorneys in his court, telling them not to speak to defendants before the start of hearings and requiring all parties to stay until their payment deals are reviewed. ''We won't accept any further agreements until we see both parties,'' he said.
But when it comes to specifically informing debtors of their rights, most clerks say they want to avoid any appearance of advocacy. They therefore feel it's not proper to tell debtors they can dispute a debt or demand documentation of it. Or that if they are on public assistance, they can't be forced to use that money to satisfy a judgment.
Only at the Boston Municipal Court did the Globe observe a clerk carefully questioning defendants about their ability to pay. At one session, assistant clerk-magistrate Patrick F. Mullaney asked each debtor whether he or she had a
job and could truly afford the payments they were agreeing to make. He asked if they were on any kind of public assistance, and if so, told them the case would be dropped for a year.
''One part of the government is giving them something to get by,'' Mullaney said. ''It doesn't seem to make sense that another part of the government is ordering them to pay money.''
Even the plaintiffs' lawyers at Boston Municipal ask defendants if they have the means to pay, because Mullaney requires them to do so.
Connolly said the courts must rely on the ''good faith'' of the lawyers who appear before them to uphold the rules. But, with so many unrepresented debtors going up against lawyers, she acknowledged, ''There's an imbalance there. There's no ifs, ands, or buts about it.''
That imbalance is exacerbated by another widespread practice in debt cases - the use of ''covering'' attorneys.
These are legal practitioners who are paid small sums by collection firms to raise their hand and say ''here'' when a case is called. They appear at courts around the state, often representing as many as a dozen plaintiffs in a single session. And they typically know only the barebones facts of a given case, a name and the sum that's supposedly owed.
Covering lawyers usually don't need to know more; they're simply there to collect default judgments against people who don't show up. On a busy day last September in Lowell, for instance, a handful of covering lawyers had only to say ''plaintiff'' for the record 132 times. Their work was done in 90 of those cases, because the defendants did not appear.