Finding the right forum

As a small claims judge in one of Marion County’s nine townships, Judge Douglas Stephens isn’t worried about the familiar faces who file claims in his court.

Though he knows that some attorneys probably choose his court, as they might choose other courts and judges because of location and convenience, the local judge in Pike Township is more concerned about making sure the litigants – especially those not represented by an attorney – know and understand their rights.

“We’ve been painted as a cold heartless collection court,” Stephens, who’s been on the bench for more than eight years, said about the county’s
 

small claims court. “But we are first trying to make this a pleasant and fair experience for those people who have to come here, and we’re not focused on why certain lawyers are filing in a particular court.”

The national spotlight shined on Indiana’s largest county court system in July after a front page Wall Street Journal article highlighted perceptions about “forum shopping” in the Marion County small claims courts. The article focused on debt collection cases and how the location of proceedings is often determined based on a lawyer’s perceptions of local courts and the collections practices imposed by each judge.

The issue has received increasing attention in recent years. In early 2011, a federal judge in New York found that Illinois-based Allstate was “judge shopping” by filing in Manhattan its $700 million mortgage debt lawsuit against Bank of America Corp’s Countrywide. The judge moved the case to Los Angeles to ensure consistency and efficiency.

The WSJ reported that some Indiana judges handle their courtroom practices differently by accommodating “frequent-filer” collection attorneys. For example, some have different practices for supervising meetings between creditor attorneys and debtor litigants or which cases actually go before the judge. The judges cited in the WSJ article tell Indiana Lawyer their comments were taken out of context. While they acknowledge forum shopping does happen, they say it is not the concern that the national newspaper makes it out to be.

In Marion County’s township courts, court figures from the state show most of the debt collection cases involve less than $6,000 and those can be filed in any of the nine townships – except in landlord-tenant disputes, which must be filed in the township where the property is located. But in every case, no matter the jurisdiction, the defendant has the ability to ask that the suit be venued to the township where he or she lives.
 

Gonon

Attorneys practicing in small claims court have mixed feelings about the notion of forum shopping. Indianapolis medical debt collection attorney Richard Gonon said the practice is used and that it can cut both ways, depending on where either party is located.

“Forum shopping isn’t illegal. It’s a valuable mechanism to use as a method to best advocate for your client,” he said. “It might have a poor connotation, but the way it’s implemented is perfectly legal and there’s no need to change it.”

Gonon said some courts may appear eager to accommodate plaintiffs who file 50 to 100 lawsuits a week – simply for the efficiency and convenience of it, not the end result of ruling for or against them.

Indianapolis attorney Paul Ogden, who occasionally practices in the small claims court, sees the practice as more of a problem than his colleague does. He takes issue with what he describes as informal settings in some courts that seem to better accommodate frequent users, allowing them access behind court counters, use of copy machines or even preferences on setting court dates.

“The problem is that small claims courts are profit centers for a township and end up competing against each other for business,” he said. “While the shopping around doesn’t affect the judges’ perspective on cases, there is a sense that you want to keep the attorneys happy. Every court acts a little differently and has different ways of handling attorneys who are always in there, but the underlying incentive seems to be to keep those frequent filers happy. That gives the appearance of impropriety and it leaves a bad taste in your mouth.”

But the judges say it’s not a matter of judge shopping, but rather the attorneys picking places that might help the process move more smoothly for them and the other parties involved in cases.

Rosenberg

Marion Circuit Judge Lou Rosenberg said he sees concerns surrounding local forum shopping to be more about how court services are used than any ideological disposition of a particular judge. That is something the small claims court judges agree on.

“It’s not forum shopping in the traditional sense, it’s basically which court of the nine is closest to me as an attorney and which gets me out the quickest and most efficiently and conveniently,” Stephens said. “If there’s any shopping going on, it’s probably staff shopping more than judge shopping.”

Stephens and the other judges echo that they aren’t deciding cases to please frequent filers. While internal court practices may currently differ to some degree, judges say the end result is based on the facts.

“Every judge may be familiar with the same faces that appear in his or her court, but it wouldn’t dawn on me that they might be choosing this or some other court for whatever reason,” said Judge Michelle Smith-Scott in Center Township, which has the most landlord-tenant disputes and is the only small claims court located in the Marion County City-County Building. “I just don’t monitor that. I’m more interested in safe-guarding the system to make sure our courts are fair and accessible to all.”

Since the WSJ story ran, Smith-Scott said she has made a practice of speaking with larger filers, such as creditors, and instructing them to meet with people before court officially convenes in order to discuss settlements or possible garnishments, and if there are any disagreements those go before the judge.

“That’s always been an option, but now this is more of a formalized process we’ll be doing,” she said. “I don’t want any private discussions where litigants might feel pressured.”

Judge Garland Graves in Warren Township said that since the article ran, he’s been observing the nine small claims court judges working more closely and communicating more than before. Rosenberg has also been advising and helping the small claims courts create a more unified and consistent approach to how they handle cases and work with litigants.

The courts are working on a “rights and responsibilities” pamphlet to display and hand out in court to litigants to help ensure the public knows the rules and what is and isn’t allowed. That should be finalized by year’s end, Rosenberg and Stephens said.

“We didn’t realize that some of these perceptions exist about judge shopping in a way that treats people unfairly, and now we’re doing our best to make sure those things aren’t happening and the perceptions are addressed,” Stephens said.•