I have for many years represented well heeled clients, both commercial and individual, and have engaged in some rather serious litigation. A percentage of this was in unlawful detainer actions (evictions) representing landlords here in Orange County. For financial reasons, I limited my clientele to experienced professional landlords and avoided the small property owners as much as possible and residential tenants completely. Needless to say, I have observed, and confronted personally, tenants who could very well have prevailed at trial if only they had known what they were doing.
It makes me sick to see good people lose at trial, when they otherwise might have won but for lack of a couple of simple questions or an obviously important document or two. Often it is quite apparent when a tenant hits a nerve in court. The judge suddenly comes out of his slouching position and his face loses that bored look. Landlord’s counsel stiffens and starts ruffling through his papers or leans over and whispers to his client. The judge may even start asking questions in an effort to assist the clueless tenant. Opposing counsel for the first time will start objecting. For my part, I do the same thing in my seat in the gallery: sit up straight and whisper to my client sitting next to me. Suddenly this whole morning has become inter-esting, and I want my client to know what is going on. Much more often than not, though, the tenant unfortunately does not know how to drive the stake home. A couple of poignant ques-tions to the landlord, a receipt, or even a copy of an e-mail may have carried the day. Instead, the ruling is for the landlord, and the tenant shuffles out of the court room, muttering about the unfairness of the system.
It would be too simple an answer to say to that tenant: learn the issues in your case before you go to trial. Or, hire an attorney to help you. Most average people, and almost certainly the individual tenant who finds himself in court for failure to pay the rent, cannot afford high powered (or even under powered) legal representation. And certainly they cannot “learn the law” much less learn the procedures for presenting evidence at trial. These skills take diligent attorneys years of study and practice. It is for this very reason that California established the small claims court. Unfortunately, evictions cannot be heard in small claims. Like it or not, all tenants and landlords must duke it out in a venue where they are expected to know the law and court procedures.
I have but one humble suggestion. Find an attorney who will spend the time to advise the in proper (“unrepresented”) individual over the phone. At the very least, the attorney can advise the tenant or landlord whether or not he has a case worth fighting for. And if there is a valid issue, then both the litigant can be advised on how to deal with it. I feel that if all the attorney has to do is take time on the phone advising a client and does not have to make appearance or calendar and follow up when he takes on a case, he can do so for a substan-tially reduced rate. I know I am willing to do so. If the do-it-yourself litigant can consult with a knowledgeable attorney, then he will know within fifteen or thirty dollars of the attorney’s time whether to spend the time and money necessary to take his claim to the mat or simply to settle it. If the litigant decides he should prosecute his claim further, then in the average limited jurisdiction case, even small claims cases, probably less that an hour of the attorney’s time will give the litigant a much better chance of prevailing at trial.