Title: Dispute settlement in a southern small claims court
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Title: Dispute settlement in a southern small claims court
Physical Description: viii, 373 leaves : ill. ; 28 cm.
Language: English
Creator: Purdum, Elizabeth Dixon, 1948-
Copyright Date: 1983
 Subjects
Subject: Small claims courts -- Florida   ( lcsh )
Courts -- Florida   ( lcsh )
Anthropology thesis Ph. D   ( lcsh )
Dissertations, Academic -- Anthropology -- UF   ( lcsh )
Genre: bibliography   ( marcgt )
non-fiction   ( marcgt )
 Notes
Statement of Responsibility: by Elizabeth Dixon Purdum.
Thesis: Thesis (Ph. D.)--University of Florida, 1983.
Bibliography: Bibliography: leaves 358-372.
General Note: Typescript.
General Note: Vita.
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Bibliographic ID: UF00098266
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: alephbibnum - 000354599
oclc - 09849008
notis - ABZ2737

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DISPUTE SETTLEMENT IN A
SOUTHERN SMALL CLAIMS COURT










BY

ELIZABETH DIXON PURDUM


A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL
OF THE UNIVERSITY OF FLORIDA IN
PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE DEGREE OF DOCTOR OF PHILOSOPHY


UNIVERSITY OF FLORIDA



























Copyright 1983

by

Elizabeth Dixon Purdum















ACKNOWLEDGMENTS


Many people contributed in various ways to this work. My committee

members, J. Anthony Paredes, Allan Burns, Elizabeth Eddy, Paul Doughty, and

Robert Moberly, offered numerous helpful suggestions. I owe a special debt to

J. Anthony Paredes, the committee chairman. He was always accessible and

gave me constant guidance throughout this lengthy undertaking. His critical

eye and gentle prodding made this work considerably better than it would have

been otherwise. Each of the other committee members made a unique

contribution to this dissertation. Allan Burns introduced me to the concept of

"action chains" and to many other ideas that proved relevant to understanding

the small claims court and its participants. Elizabeth Eddy interested me in the

study of formal institutions in complex societies and taught me the importance

of examining these institutions in their historical context. Paul Doughty

encouraged me to think about the practical relevance of anthropological

research, while Robert Moberly, a law professor, asked many difficult questions

that helped me clarify my own thinking.

I would also like to thank several people at the Florida Resources and

Environmental Analysis Center at Florida State University where I work.

Edward Fernald and Frank Unger generously allowed me to follow a flexible

schedule necessary to complete my field research. Dale Friedley, Teresa

Ingles, and Patricia Mitchell assisted me with the computer analysis. The

Cartographic Division, under the direction of Jim Anderson, drew the figures.














Mary Melton and Hunter Barnett did an excellent job of typing the dissertation.

Jim Sconing of the Statistical Consulting Center at Florida State University

reviewed my statistical analysis.

Mike Bridenback of the Florida Office of the State Courts Administrator,

and Jack Planchard and Richard Reeves, formerly of the same office, also

deserve thanks. They highlighted for me many of the current issues in small

claims court research. Mike Bridenback and Jack Planchard also shared with

me their own research instruments and data from their statewide study of small

claims courts.

The Leon County judges gave generously of their time and patiently

explained to me many things about the court and the law. The deputy clerks

also assisted me, !particularly when I was collecting data from the court

records. I would also like to thank all the people who shared their court

experience with me. Without the help of the judges, clerks, and litigants, this

project would not have been possible.

Lastly, I would like to thank my husband Ken Plante, who supported and

assisted me in innumerable ways, and our son David, whose good nature and

cheerful disposition provided a welcome break from the often tedious tasks of

research and writing.









CONTENTS


ACKNOWLEDGMENTS iii

ABSTRACT vii

CHAPTER 1 DISPUTE SETTLEMENT AND COURTS:
A CROSS-CULTURAL PERSPECTIVE 1

Development of the Study of Law and Anthropology 4
Studies of Small Claims Courts 18
Statement of Research Problems 26

CHAPTER 2 METHODOLOGY 33

Concepts and Definitions 35
Research Methods and Techniques 38

CHAPTER 3 BACKGROUND AND SETTING 48

The Local Setting 48
The Greater Legal Setting 56
Development of Small Claims Courts 64
Summary and Conclusions 76

CHAPTER 4 LITIGANT CHARACTERISTICS 79

Types of Cases 81
Attorney Representation 87
Demographic Characteristics 103
Relationships between Litigants 118
Summary and Conclusions 152
Notes 157

CHAPTER 5 THE LEGAL PARTICIPANTS 158

The Judges 160
The Clerks 181
Attorneys 196
Litigants' Attitudes Toward Legal Participants 205
Summary and Conclusions 212

CHAPTER 6 THE PROCESS 216

Prelitigation Efforts 218
Filing a Claim 230
The Pretrial Hearing 231
The Hearing 252
The Decision 281
Summary and Conclusions 287
Notes 293
V









CHAPTER 7 CONCLUSIONS 294

Litigants 299
Court Personnel 303
The Small Claims Process 304
Leon County Small Claims Court in its Wider Contexts 309
Recommendations 321
Areas for Future Research 328

GLOSSARY 332

APPENDIX A: CASE STUDY SUMMARIES 337

APPENDIX B: RESEARCH INSTRUMENTS 349

REFERENCES CITED 358

BIOGRAPHICAL SKETCH 373















Abstract of Dissertation Presented to the Graduate Council
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy


DISPUTE SETTLEMENT IN A
SOUTHERN SMALL CLAIMS COURT

By

Elizabeth Dixon Purdum

April 1983

Chairman: J. Anthony Paredes
Major Department: Anthropology

Anthropologists, long interested in dispute settlement in tribal and village

societies, have given little attention to dispute settlement in modern complex

societies, such as the United States. A small claims court was selected as the

most likely place within the formal judicial system to find disputes brought by a

range of individuals and organizations. The Leon County, Florida, small claims

court was chosen for study because few small claims courts have been examined

in the South. Research methods included observation, interviews, quantitative

techniques, and participant observation. A case file sample (N = 291), a pretrial

observation sample (N = 549), and an extended case study sample (N = 42) were

drawn.

Types of litigants and types of relationships between them are described.

Attitudes and behavior of court personnel are also examined. The small claims

court process is then analyzed by tracing disputes from the prelitigation state,

through pretrial hearings and trials, to post-court actions.














Most litigants make considerable efforts to resolve their disputes before

filing in court. Filing marks a severing of their relationship. Judges dispense

quickly with most cases during pretrial hearings. Little conciliation occurs

during these hearings. Negotiation is more common, but appears to have a

strong element of coercion. As structured, pretrials are not effective for

settling disputes or for educating litigants for later trials. During trials, judges

transform and narrow disputes presented by litigants. Certain types of cases

are particularly problematic for judges and may be handled better in another

forum. Formality increases, often to the disadvantage of unrepresented

litigants, when attorneys are present.

Tension exists between judges, clerks, and attorneys, as well as between

court personnel and litigants. Both judges and clerks perceive their roles as

stressful. Litigants think judges favor attorneys, whereas attorneys think

judges favor unrepresented litigants.

The findings are placed in the context of broader cultural patterns and

previous anthropological studies of dispute settlement. Based on the results of

the study, it is recommended that a more effective means of educating litigants

be developed, that the role of attorneys be limited, and that litigants be given

the option of mediation.














CHAPTER 1
DISPUTE SETTLEMENT AND COURTS: A CROSS-CULTURAL PERSPECTIVE


The hallmark of anthropology has been a cross-cultural, comparative

approach to the study of human behavior. Within the anthropology of law,

writers have frequently expressed the desirability of documenting the variety of

ways disputes are handled within every society, complex as well as simple,

recognizing that any theories of legal processes are incomplete as long as

anthropologists limit themselves to small-scale societies (Abel 1973; Epstein

1967; Bohannon 1967). In comparison with the extensive research on law in

tribal and village societies (e. g., Barton 1919; Malinowski 1926; Rattray 1929;

Hogbin 1934; Llewellyn and Hoebel 1941; Hoebel 1954; Gluckman 1955;

Bohannon 1957; Pospisil 1958; Nader and Todd 1978), anthropologists have done

very little investigation of law in complex western societies, particularly the

United States. Within recent years, a few anthropologists have directed

attention to the United States and have studied such issues as plea bargaining in

an urban criminal court (Hoane 1978), use of criminal courts in a polyethnic

urban neighborhood (Merry 1979), mediation in a northern city (Witty 1978),

dispute settlement in a southern town (Greenhouse 1976), and linguistic

variation in a North Carolina court (O'Barr 1982). To date, Nader (1980) has

edited the most comprehensive study of dispute settlement in the United

States, a volume of essays on alternatives to the judicial system for resolution

of consumer grievances. Examination of these alternatives is important, but it

is equally important to examine the role courts themselves play in the

community as Merry (1979) has done for criminal courts. Moreover, consumer








2

grievances are not the only type of problem brought to the courts by individuals

in the United States. In order to understand the function of courts the wide

range of cases brought to them must be described.

Detailed studies of lower courts are of particular practical relevance in

light of criticism of the courts by members of the legal profession for their

failure to resolve minor disputes (ABA 1978; Erickson 1978; Bell 1978). These

criticisms have led to proposals for changes both within and outside of the

current court structure. For example, within lower civil courts arbitration as

an alternative to adjudication has been proposed (National Institute for

Consumer Justice 1972; Small Claims Court Study Group 1972). Mediation of

both civil and criminal grievances through neighborhood or community dispute

settlement centers has also been suggested as a means of resolving minor

disputes (Danzig and Lowy 1975). Before reforms are implemented, however,

more data are needed on the actual day-to-day operations of the courts. The

attitudes of the participants need to be detailed and the effects of these

attitudes on court operations explored. Questions such as the types of cases

handled best by the courts and those which may be handled better in another

forum need to be addressed. Because of their training, which stresses studying

both behavior and attitudes of participants in a natural social setting, anthro-

pologists may be able to make a unique contribution to the understanding of the

actual operations of courts. Anthropologists are also well aware of the

unwanted consequences of implementing reforms without adequate under-

standing of the workings of the community or organization to be changed

(Spicer 1952; Clifton 1970; Foster 1969; Kimball and Provinse 1942; Paul 1955).

The organization selected for this study is a small claims court in a

Southern county. The primary reason for this selection was the belief that such








3

a study could contribute to the anthropological literature on dispute settlement.

Within the subfield of anthropology and law, researchers have been concerned

primarily with the variety of means developed by members of different cultures

for resolving disputes between individuals (e.g., Barton 1919; Gluckman 1955;

Hoebel 1954; Gulliver 1973; Gibbs 1963). Since their inception in the early

1900s small claims courts have had a reputation as "people's courts." Even

today there is a popular television show entitled "The People's Court," which

presents actual cases from a California small claims court. Throughout the

United States small claims courts were designed to settle a high volume of

disputes for small amounts of money brought by individuals or businesses, with

or without the aid of attorneys. More than any other courts, they are the

setting where the widest cross-section of members of different organizations,

races, classes, and ethnic groups interact. Thus, a small claims court was

thought to be the most likely place within the formal judicial system to find a

wide range of disputes. Within small claims courts, it is also possible to study

attitudes toward justice and law not only of the members of the formal court

and the bar but also of members of the community since many individuals

present their cases in their own words without the assistance of attorneys. The

small claims court is, in a sense, an arena where informal and formal modes of

dispute settlement intersect.

The small claims court in Leon County, Florida, was selected for study

because not only does it have a typically wide range of participants, but it also

exhibits a variety of dispute settlement mechanisms, including conciliation,

negotiation, and adjudication. Furthermore, the vast majority of small claims

courts studied have been outside of the South. In her 1977 review article on

anthropological studies in the American South, Carole Hill suggests that










although the South is becoming more and more like the rest of the United

States in terms of objective measures such as urbanization, income, and

education, a distinctive culture still exists. If Hill's suggestion is true, we

would expect to find some differences between the small claims court in Leon

County and small claims courts studied in other parts of the nation. Thus a

study of Leon County small claims court will contribute to the literature on

small claims courts as well as to the more general literature on dispute

settlement.

Like the rest of the legal system, small claims courts have received a

great deal of criticism (Pagter et al. 1964; Hollingsworth et al. 1973; Moulton

1969) and a number of reforms have been proposed. In response to this

criticism, the Florida Supreme Court is currently studying, through

questionnaires, interviews, and examination of the records, thirteen small

claims courts in the state. The detailed, long-term (approximately one year)

study of a single court reported here will help explain and clarify statistical

patterns found in the broader study and will thus be useful for understanding the

impact of any proposed changes. Patterns of behavior of which the participants

are unaware may emerge as a result of observation and informal interviews. In

addition, as anthropologists have long realized, it is important to examine what

individuals actually do as well as what they say they do.

Development of the Study of
Law and Anthropology

In the nineteenth century, before anthropology emerged as a discipline,

individuals interested in understanding of society often turned to the study of

law (Pospisil 1973). Thus, many of the founders of anthropology (for example,

Bastian, Morgan, Maine, and McLennan) were trained in law. These men were








5

concerned with tracing the evolution of specific social institutions, particularly

those within the realms of kinship and law. Even though a broad analysis of

cultural history was their primary goal, "they clearly understood that law,

marriage, kinship and so on, were to be understood in relationship to each other

and the social conditions in general" (de Waal Malefitt 1974: 128). Thus, for

example, Maine based his theory of social evolution on the rise of the role of

contracts as a consequence of the declining role of kinship (1861).

In the early part of this century, anthropologists shifted their attention

from elaboration of evolutionary schemes derived primarily from second-hand

information to accounts of individual cultures derived from participant

observation. This was the age of salvage ethnography, when anthropologists

were busy collecting data on exotic ways of life threatened with extinction.

This was also a time when England had a vast colonial empire to administer

with relatively few colonial officials. Anthropologists, or government officials

trained in anthropology, were employed to gather a wide range of information

on native peoples, especially under the policy of Indirect Rule, in which native

personnel and traditional government mechanisms were used as much as

possible (Foster 1969). Under Indirect Rule, British officers who heard appeals

from the native courts frequently used manuals prepared on native law (Roberts

1979). Many early ethnographers, however, ignored law altogether (Pospisil

1973), although a few collected data on conflict and dispute settlement as part

of more general descriptive studies of non-Western societies (Barton 1919;

Malinowski 1926; Rattray 1929; Hogbin 1934). Early kinship studies such as

Radcliffe-Brown's study of the mother's brother in South Africa (1924) also

addressed fundamentally jural questions of descent and property rights.

Primarily descriptive, these early studies detailed the variety of dispute








6

settlement mechanisms, including negotiation, mediation, and adjudication,

developed by the world's societies.

One of the first definitions of law by an anthropologist was proposed by

Malinowski writing in the introduction to Hogbin's Law and Order in Polynesia

(1934). According to Malinowski, law consists of "the rules which curb human

inclinations, passions or instinctive drives; rules which protect the rights of one

citizen against the concupiscence, cupidity or malice of the other, rules which

pertain to sex, property and safety" (1934:lxii). For Malinowski, the main

attribute of law was obligation between individuals in ongoing relationships:

law was enforced not by the courts and police but by the specific mechanism of

reciprocity inherent in the structure of society (Malinowski 1945). Llewellyn

and Hoebel (1941), like Malinowski, viewed law as a system of rules existing in

all societies. Their primary contribution, however, was not in their definition

of law, but in their development of an explicit methodology for the study of law

in non-Western societies. For their study of the Cheyenne, Llewellyn, a lawyer,

and Hoebel, an anthropologist, borrowed the concept of case study from the

philosophy of legal realism, a branch of thought within the American legal

system. The legal realists' position was that the rules of law were best

understood through the examination of court cases: "The prophecies of what the

courts will do in fact, and nothing more pretentious, are what I mean by law"

(Holmes 1897 in Aldisert 1976: 30). Llewellyn and Hoebel, like Holmes,

believed that law "must be dug out of the cases in which actual troubles have

been dealt with" (1941: 27). Although Hoebel stated that his approach to law

was "flatly behavioristic and empirical" (1954:5), he, like most legal scholars,

was basically concerned with discovering the rules behind behavior. Hoebel

viewed members of each society as holding general propositions about the








7

nature of the world and about what is desirable and undesirable. He called

these propositions "postulates" because he believed that people reasoned from

them and based their behavior on them. These kinds of propositions are more

commonly referred to as "values" or "cultural themes." Hoebel saw the

consistency among postulates and between postulates and behavior as measures

of integration of a culture. Some of a culture's postulates are enforced by the

culture's legal system -- that aspect of the culture concerned with social

control -- and are referred to by Hoebel as "jural postulates." It was these that

he sought to uncover by recounting a society's trouble cases.

Hoebers work inspired anthropologists to turn again to the study of law in

the 1950s (Gluckman 1955; Bohannan 1957; Pospisil 1958; Smith and Roberts

1954; Gibbs 1963). This resurgence of interest in law in tribal and village

societies led to lengthy discussions of such questions as do all societies have

law, and what is law? Hoebel (1954), Radcliffe-Brown (1952), and Redfield

(1967) all emphasized the application of physical sanctions in their definitions

of law. Redfield (1967: 67) defined law as the "application of force by the state

in support of explicit rules of conduct" and thus found little law in primitive

societies. Pospisil (1967) stressed the importance of nonphysical sanctions in

his definition of law. He saw psychological sanctions, such as ostracism,

ridicule, avoidance, and denial of favors, as strong a means of control as

physical sanctions. Among the Kapauku of New Guinea he found being shamed

in public, which sometimes lasted for several days, was considered much worse

than any other sanction except capital punishment. Po;pisil also questioned the

use of sanction as the only criterion of law. To his definition of law he added

three other criteria: authority, intent of unive ;al application, and obligation.

Authority was the requirement that an individual (or subgroup) had sufficient








8

influence to cause the majority of the group's members to conform to his

decision. Universal application was the authority's intention that his decision

would be applied to all similar situations in the future. Obligatio was the

authority's view, as articulated in his decision, of the rights of one party and

the duties of the other.

Bohannon (1967) returned to Malinowski's definitions of law (1934; 1945)

as the starting point of his conception of law. He considered Malinowski's

definition, with its emphasis on reciprocity, to be too broad, to refer not to law,

but to custom. Bohannon viewed law as the reinstitutionalization of some of

society's norms within legal institutions. His view was similar to Hoebel's point

that law entailed the assertion of some of a society's values in jural postulates.

Bohannon also foreshadowed the later processual approach to the study of law

by characterizing dispute settlement in three steps: the ways problems are

disengaged from institutions of origin, the ways trouble is handled within the

legal institution, and the ways solutions are integrated into nonlegal

institutions. Within legal institutions two types of rules--procedural and

substantive -- were evident and should be studied.

While Hoebel (1954), Pospisil (1967), and Bohannon (1967) focused on

defining law, another approach was developing within the subfield of anthro-

pology and law. Nader and Todd (1978) characterize this approach as

structural/functional. The kinds of studies relate types of social relations or

types of conflict to particular mechanisms of dispute resolution. For example,

Gluckman (1955) and Nader (1969b) have suggested that when a relationship

between parties is multiplex (i.e., entailing more than one type of relationship,

for example, a kin as well as an economic relationship) and ongoing, mediation

is more likely to occur than adjudication. Collier's study of two neighboring










communities in Chiapas, Mexico, supports this view (1979). She found that

mediation was common in one town, where everyday quarrels threatened

production units. In the other town where individuals participate in the larger

economy as wage earners in menial jobs, not only was adjudication the common

form of dispute settlement, but individuals were unwilling to act as mediators.

Maeaulay, a lawyer, found in a study of conflict resolution among businessmen

that those with ongoing relationships preferred to resolve their problems though

negotiation rather than adjudication (1963). In a similar way, Merry (1979)

found in a study of an urban criminal court that the crucial variable for

explaining when people file charges is whether they intend to continue their

relationship. They filed in court only after they had decided to sever the

relationship. The relationship's duration or complexity was not a factor in their

decision. Black (1976; 1980) and Starr and Yngvesson (1975) have suggested

that persons of equal rank are more likely to work out a compromise than those

of unequal rank. In a United States shopping center compromise based on face-

to-face relationships between those of equal rank was found to be the most

effective way of resolving and foreclosing the escalation of disputes

(MacCallum 1967).

According to Aubert (1969) and Forman (1972), the determinant of the

most desirable dispute settlement mechanism may not be the relationship

between parties, but may instead be the type of conflict. Aubert has suggested

that conflicts of interest, in which parties agree on standards of reasonable or

appropriate behavior, are best resolved by negotiation. In contrast conflicts of

values, in which parties disagree on fundamental standards of right and wrong,

are most effectively resolved by adjudication. Forman found in an Ecuadorian

village that disputants employed different strategies according to the issue in








10

dispute regardless of the nature of their relationship (1972). Individuals were

most likely to use noncompromise forums such as courts for cases involving land

and other valuable property. In these instances individuals were willing to risk

sacrificing their relationship in order to gain the resource. In a study of dispute

settlement in urban Ghana, Lowy (1978) describes the choice of remedy agents

as dependent on the goals of the disputants as well as on the degree of

multiplicity of their relationships. Urban Ghanaians used courts not only for

cases involving money, but also as a means of obtaining prestige and status.

The choice of dispute settlement mechanisms may also be affected by a party's

social network (Nader and Metzger 1963; Jacob 1969; Boissevain 1974; Gulliver

1973). Nader and Metzger (1963) found among the Zapotee of Mexico that

women without male relatives, who might help them resolve a conflict,

commonly resorted to the court. Likewise Todd (1978) found in a study of a

Bavarian village that socially marginal members of the community were most

likely to bring their problems to the village court.

The processual approach to the study of law represented a shift in interest

among anthropologists from institutions and social groups to the role individuals

play in deciding the course of disputes. This approach stemmed from the work

of Colson (1953), Turner (1957), Bailey (1960, 1969), Gulliver (1971), and Barth

(1966). Implicit in this view was recognition not only of law in every society,

but of a multiplicity of legal systems in any society (Pospisil 1971; Nader and

Todd 1978; Nader 1980). Within the processual approach disputes are described

as they evolve over time with attention given to the motives and choices

available to all participants at each step of the process (Nader and Todd 1978;

Collier 1975; Moore 1978; Hall 1976). To facilitate cross-cultural comparisons

of law, Nader and Todd (1978) have proposed that disputes be described in terms








11
of a series of universal components. These components are the item in dispute,

the parties involved in the conflict, the way in which each party presents the

dispute in a public forum, the procedure used in the public forum to handle the

dispute, the outcome, the termination of the dispute, and the enforcement.

The processual approach has been criticized insofar as it assumes equality

among society's members by failing to acknowledge social, economic, and

cultural constraints on individual choice (Moore 1978). Galanter, a political

scientist, argues that the adversary nature of litigation in the United States

favors those who litigate most frequently and who have the resources to litigate

effectively (1974). Two other political scientists, Eisenstein and Jacob (1977),

found members of disadvantaged groups to be much more likely than members

of advantaged groups to be punished by criminal courts. These individuals were

also found to be less likely to receive benefits from civil courts in the form of

judgments in their favor. In rural Mexico, Hunt and Hunt (1969) also found

uneven use of the court by members of different social groups. Indians were

extremely reluctant to bring cases to the district court because, according to

Hunt and Hunt, of the inconvenience of the court's hours and the failure of the

court officials to recognize the validity of certain aspects of Indian culture.

Non-Western cultural differences in communication style may also be a distinct

disadvantage in a Western courtroom. In a study of Australian Aboriginal

courtroom behavior, Liberman (1981) found that Aborigines' speech and non-

verbal behavior were frequently misunderstood by Anglo Australians. Ordinary

Aboriginal discourse is characterized by an effort to preserve harmony within

the group. Individuals refrain from asserting their points of view too strongly

and rarely answer a question with a simple yes or no. Aborigines have also

developed submissive interaction patterns for dealing safely with Europeans.








12
These conciliatory and unassertive communicative patterns work to the detri-

ment of Aborigines in the courtroom where interaction is characterized by

intense disagreement and direct questioning.

Related to the processual approach, with its concern for individuals, are

ethnoscience investigations of legal institutions. The goal of ethnoscience is to

detail the ways people conceptualize aspects of their cultures, to describe

cultures as seen by actors themselves. This so-called emie view is commonly

derived from intensive interviewing of a limited number of representatives of a

culture. Although the techniques of ethnoscience have been most commonly

applied to kinship systems (Goodenough 1965; Wallace 1965), there have been

some attempts in recent decades to apply them to the domain of law. In a

general way Bohannon (1969) and Frake (1969) have adopted an ethnoscience

perspective by insisting that a non-Western legal system must be described in

"native" legal terms and not in the terms of Western jurisprudence. Other

ethnoscience studies of law have examined law or courts from the point of view

of one type of participant (for example, attorneys or defendants). Black and

Metzger (1969) have used eliciting techniques from ethnoscience to study

American law terms, and Spradley (1970) has looked at a court in the United

States from the point of view of defendants charged with drunkenness.

Other anthropologists have also examined law and the courts in the United

States. Nader (1980) and Greenhouse (1976) have studied dispute settlement in

general and Merry (1979) and Hoane (1978) have studied particular courts.

O'Barr (1982) has focused on styles of language and their effect in a North

Carolina criminal court. All these studies are all ultimately concerned with

questions of cultural pluralism, access, and power in a complex society.










The United States, as an example of a modern, industrial society, is

frequently contrasted with small-scale, traditional societies. Nader and Todd

(1978) characterize law in the United States as "law between strangers" and

state access to law is more readily available in some underdeveloped parts of

the world than in the United States. In a program produced for the Odyssey

series on public television, entitled "Little Injustices," Nader juxtaposes the

availability and effectiveness of dispute settlement mechanisms in rural Mexico

with the inaccessibility and ineffectiveness of such mechanisms in the United

States. Lack of access to dispute settlement forums in the United States is

viewed as contributing to feelings of powerlessness among the general public

and as serving to maintain the status quo (Nader and Todd 1978; Nader 1977).

Access is limited by high costs, delays, distance, lack of information and

domination of dispute settlement forums by professionals. These professionals

develop a subculture during their training that alienates them from many of

their clients (Friedson 1971), a phenomenon also noted among health care

professionals (Taylor 1970). Aubert (1966) found members of the legal

profession placed a higher value on communicating with each other than with

their clients. There has also always been a close association between the legal

profession and business in the United States (Krause 1971). As a consequence,

lawyers are more likely to be sympathetic toward the concerns of businesses

than the concerns of individuals.

Anthropologists view small-scale, traditional societies as not only having

more accessible dispute settlement forums but as also having a wider range of

mechanisms to deescalate social conflict than do complex, urbanized state

societies (Nader and Yngvesson 1973). For example segmentary opposition,

conflicting loyalties, rituals of rebellion, and compromise mechanisms, common










in traditional societies, are weak or absent in the United States. Anthropolo-

gists, however, frequently forget that although multiplex relationships in which

individuals and groups are linked are generally necessary for the development of

these mechanisms and may serve to deescalate conflict, this same feature may

lead to the violent escalation of a dispute. A dispute that may have remained

limited to individuals in the United States may spread to bloodshed between

groups as Koch has documented for the Jale of New Guinea (1978).

In all societies individuals without links to powerful people may resort to

formal dispute settlement forums such as courts. In an urban housing project in

the United States Merry (1979) found that individuals, particularly women and

old people who could not resort to violence or mobilize others to violence, used

the court to harass and threaten the other party. The court, however, rarely

resolved these disputes, which were ultimately resolved by avoidance. In

contrast to traditional courts (Nader and Metzger 1963), where the court's goal

is to arrive at a mutually acceptable compromise, the court described by

Merry's informants functioned to determine only if the law had been violated

and, if so, to punish the offender. In contrast to Nader and Todd's prediction

about limited access to the courts in the United States (1978), Merry found the

court accessible in terms of time and cost, although it was not particularly

effective in resolving disputes.

Nader, in a study of alternatives to the courts for resolving consumer

grievances, found that these forums were also ineffective (1980). Her students

examined "Action Lines," congressional offices, and the Better Business Bureau

from the point of view of the complainant. They found responses by businesses

to complaints to be characterized by denial. The whole complaint process was

structured to encourage individuals to drop their complaints either by making










the complainants feel deviant or by referring them from agency to agency.

Businesses, with the advantages of time, resources, and knowledge on their side,

were usually successful in getting people to drop their complaints.

Numerous other social scientists have focused on law in the United States.

Their primary concern has not been with dispute settlement in general, but with

the operation of formal institutions such as the police and the courts. However,

the concerns and methods of some of these researchers are similar to those of

the anthropologists and provide a broader base of knowledge about the court

system than is available in the anthropological literature. These studies may be

grouped for convenience of discussion according to three approaches,

recognizing that these approaches are not mutually exclusive. Some studies

(Black 1976; Black 1980) are primarily deductive and as such are concerned with

the testing of predetermined hypotheses. Other studies are mainly inductive

and exploratory. Many of them describe the court in terms of organizational

theory, drawing in particular on the work of Max Weber (Feeley 1979;

Eisenstein and Jacob 1977; Mileski 1971; Brickley and Miller 1974). A third

type is the experimental approach of social psychology. In contrast to the first

two approaches, which describe the "natural" behavior of actual participants,

the approach of social psychology is experimental; that is situations are

contrived so that variables may be controlled (Saks and Hastie 1978).

Black's hypotheses are similar to those proposed by anthropologists and

relate either type of social relation or social position of litigants to use of the

courts. Black suggests that people of unequal rank are more likely to take a

problem to a court, while people of equal rank are more likely to work out a

compromise. When people are of unequal rank, the person of higher rank is

most likely to bring the case to court. Black also hypothesizes that people with








16

less wealth have less law, that they are less likely to use the law in dealings

with one another, and when they do are less successful than wealthier people.

According to Black, law decreases at extremes of intimacy, and organizations

are more litigious than individuals. Black tested some of these hypotheses in a

study of the dispute settlement function of police in three large northern cities

(1980). He found that police frequently employ conciliation with disputants of

equal rank who are involved in ongoing relationships; that they are more likely

to honor requests from white collar than from blue collar complainants; that

the greater the relational distance between a complainant and a suspect, the

greater the likelihood of arrest; and that police are more likely to use a

conciliatory rather than a penal style of dispute settlement with middle class

people than with lower or working class people.

Descriptive studies of the court by sociologists and political scientists

have characterized courts as a particular type of formal organization. For

example, Feeley (1979) in his study of a lower criminal court views the court as

a complex organization, but not as a bureaucracy. A bureaucracy implies a

hierarchical structure and commonality of purpose among its elements which he

did not find in the court. The antithesis of bureaucratic behavior as described

by Weber is discretion -- the basing of decisions on individual judgments rather

than on rules--and absence of a single authority. According to Feeley, courts,

in contrast to bureaucracies, are characterized by decentralization of

authority, minimum of hierarchy within each court, and discretion to negotiate

settlements. As in the marketplace, the pursuit of conflicting interests is

expected to produce fair and efficient decisions. Courts, unlike the ideal

bureaucracy, acquire staff in a traditional, nonrational way, recruiting

personnel on the basis of political, kin, and friendship ties. Eisenstein and








17

Jacob (1977) developed the theory of courtroom workgroups to explain how

decisions are actually reached in felony courts. The judge, although

theoretically most dominant, does not always play the most decisive role. It is

the interaction of the members of the courtroom work groups--prosecutor,

defense counsel, clerks, and bailiffs--that determines the outcome of cases.

Briekley and Miller (1974) and Mileski (1971) also stress the importance of

studying the interaction in the courtroom for understanding the outcome of

particular cases. Both studies found that resolution of initial cases affected

resolution of subsequent cases. Mileski observed in a lower criminal court that

the judge's first decision set the tone for the day. Brickley and Miller (1974)

also found that the defendant seemed to learn from the outcome of the

preceding cases the kinds of behavior expected by the court. For example, a

plea of guilty or not guilty by the first defendant seemed to set the tone for the

day.

The approach of psychologists to study of the formal judicial system, in

comparison with the other approaches discussed, is least like the approach of

anthropologists. Psychologists have applied the psychology of personality to

jury selection, the psychology of memory to eye witness testimony, and the

psychology of attitude change to advocacy (Saks and Hastie 1978). The

characteristic approach of psychology is experimental whereby dependent and

independent variables are defined and then the experimentor manipulates the

independent variable and measures the dependent variables. Those experiments

are frequently conducted in the classroom rather than the courtroom, and the

subjects are usually college students. This approach is quite different from the

inductive, natural history method normally applied by anthropologists.








18

From this brief survey on dispute settlement and courts several themes

are evident. All anthropological studies of law have been based on the

assumption that the social processes of law are best examined in relation to

actual incidents of conflict as they unfold in the community. These studies and

studies by other social scientists have revealed the importance of social

variables (e.g., relationship between parties, relative ranks of parties) for

understanding the selection and effectiveness of various dispute settlement

mechanisms. Anthropologists have also delineated the economic, social, and

cultural conditions in complex societies that may affect access to and

effectiveness of dispute settlement forums.

Studies of Small Claims Courts

The studies of small claims courts are more limited in scope than most

anthropological studies of law and the courts. Since 1960 there have been three

major (i.e., nationwide) studies of small claims courts and at least a dozen

studies of particular courts. Most of these studies can be divided into two

categories: (1) those designed in an effort to determine who is using the court

and to evaluate findings in relation to the court's original goal as a "poor man's

court"; and (2) those designed as part of the Ralph Nader-inspired consumer

justice movement that arose in the 1960s. The goal of the second type of study

(including two of the three major studies) is to examine the usefulness of small

claims court as a forum for the resolution of consumer grivances. A third

major study of small claims court (Ruhnka et al. 1978) primarily addresses

questions of administration and efficiency.

In 1964, Pagter, McCloskey, and Reinis systematically sampled 386 cases

from the records of the Alameda County, California, small claims court. They

found that 30 percent of the plaintiffs were individuals, while 70 percent were








19

businesses and governmental agencies. In contrast, 85 percent of the

defendants were individuals. Plaintiffs won (i.e., received judgment) in 90

percent of the cases. Pagter et al. suggested that the disproportional use of

the courts by business and government plaintiffs found in urban California may

not occur in rural areas. Hollingsworth, Feldman, and Clark (1973) designed a

study to test the hypothesis proposed by Pagter et al. that there are fewer

businesses and government plaintiffs in small claims courts in rural areas. Two

small claims courts in Ohio were selected for study--one urban and one rural.

Court records were systematically sampled, and no major differences were

found between rural and urban courts. In fact, more business plaintiffs were

found in rural than in urban courts (89 percent to 75 percent), although business

plaintiffs in rural areas were more likely to be sole proprietors. For both areas,

Hollingsworth et al. reported high rates of defaults (decisions given to the

plaintiff when the defendant fails to appear), high percentages of decisions for

plaintiffs, and problems collecting judgments. Fine (1978) found, in a study of a

court in a large southern California county, that cases filed by businesses are

more likely to end in default, while cases filed against businesses are rarely

decided by default. Hollingsworth et al. reported that individuals who did file

claims were in most ways representative of their communities. They were,

however, slightly better educated than the population as a whole. Eighty-five

percent of the plaintiffs interviewed said that they would use the courts again.

Hollingsworth et al. concluded that although the courts are generally

successful in terms of litigant satisfaction, there are two areas in need of

attention: collection of judgments and legislative direction to small claims








20

court judges. Judges, who were interviewed in the course of the study,

frequently expressed confusion about their proper role in small claims court,

particularly when one litigant was not represented by an attorney.

Moulton (1969) addressed the problem of the poor, individual litigant in a

California small claims court. After sampling of records and five days of

observation, she concluded that poor, individual litigants were most often

defendants and that the real beneficiaries of small claims courts were

businesses and governmental agencies. She saw the court as an intimidating

place for defendants and concluded that the defendants are unlikely to know or

understand what constitutes a valid defense. 'There is no telling how many of

the frightened defendants who 'simply owe the money' would qualify their

answers or reveal facts constituting a defense if they had legal knowledge"

(Moulton 1969: 1664). Moulton concluded with an argument for the right to

legal representation and suggests the use of "legal technicians" to assist both

plaintiffs and defendants in small claims court.

Rapson (1961) interviewed 65 defaulting defendants from the Dane

County, Wisconsin, small claims court, but did not find these individuals to have

valid legal reasons for not paying a claim as Moulton (1964) had suggested.

Instead he found many of these individuals to be young, working class, married

men with young children and with credit payments so large that they did not

have enough money left each month for necessities such as food and clothing.

Klein (1971) was the first researcher to examine systematically consumer

plaintiffs and to suggest the possibility of using small claims courts as a forum

for resolving consumer grievances. He examined court dockets in Hartford,

Connecticut; New York, New York; Detroit, Michigan; and Berkeley, California,

and found that about 10 percent of the cases filed constituted consumer








21

complaints (defined as an individual filing suit against a business).

Questionnaires were sent to each of these plaintiffs, and approximately half of

them (153) responded. Most of the consumer plaintiffs reported satisfaction

with the court and all but two stated they would use it again. Klein sees some

limitations to small claims courts, however, particularly when consumers are

defendants and not plaintiffs. "Ordinarily, it is the defense attorney's job to

call the court's attention to aspects of the law. But when, as in the usual

consumer case, there is no defense attorney, the burden falls on the judge to

make sure he and his court are not being asked to enforce an illegal or unfair

contract" (Klein 1971: 628). Klein contends that most small claims judges are

not very knowledgeable in consumer law, much of which is of recent origin. He

proposes that a new court designed as a consumer forum and staffed by judges

who are experts in consumer law be established.

Like Klein's study, the first large-scale, nationwide study of small claims

court focused on the consumer plaintiff. The major research question was

whether or not small claims courts could "really serve as a means of redress for

a large number of consumer grievances" (Small Claims Court Study Group 1972:

15). The Small Claims Court Study Group (SCCSG) was an interdisciplinary

team of researchers in Cambridge, Massachusetts, sponsored by the Center for

Auto Safety, an organization that had already attempted to get dissatisfied

automobile owners to use small claims courts. Two hundred volunteers in forty-

two states participated in the study using a list of questions provided by the

SCCSG as a data gathering guide. The questions covered such topics as claim

limit, attorney representation, restrictions on users, availability of legal aid,

location and hours of court, filing procedures and cost, and default and

collection procedures. In the Boston area, the researchers observed the courts








22

over a two-month period and interviewed plaintiffs by phone from the previous

fiscal year. The SCCSG concluded that "For the vast majority of American

consumers, small claims courts are either unavailable, unusable, or invisible"

(1972: 21). They found, as did Pagter et al. (1964) and Moulton (1969), that the

principal users of the court were not the poor, but businesses and landlords.

The courts had become, in effect, collection agencies. Litigants had difficulty

obtaining adequate knowledge about how to use the courts. They also had

problems obtaining information on how to collect judgments from corporations

or landlords. The Group also concluded that lawyers decrease the court's

informality and that the judges' familiarity with certain corporations and their

lawyers prevents them from being impartial. The report makes a number of

recommendations for equalizing the chances of individuals in small claims

court. Publication of instructional booklets outlining the procedures of the

court as well as employment by the courts of paralegal advisors to answer any

questions are recommended. Implementation of evening and Saturday sessions

to make the courts more accessible to wage earners is also suggested. In order

to allow the judge to devote more time to each case, it was proposed that ease

loads be lightened and the number of judges increased. Other recommendations

included a voluntary arbitration option and discouragement of presence of

attorneys in small claims court.

In 1972 the National Institute for Consumer Justice also published a

report with the same concern as the SCCSG report--consumer plaintiffs. The

Institute subcontracted with researchers in five cities: Detroit, Boston, Ann

Arbor, Los Angeles, and Philadelphia. In each of these cities the researchers

examined records and either sent questionnaires to or interviewed plaintiffs

(response rate varied from slightly less than 30 percent in Philadelphia to








23

slightly less than 50 percent in Los Angeles). The authors concluded that small

claims courts are a very useful, speedy, and inexpensive method of redressing

consumer grievances. The Institute's report, like Moulton's earlier study in

California, also raises the problem of the large number of default judgments in

small claims court. In the report two reasons are given to explain the high

default rate: many defendants may have valid defenses but consider their

assertion unnecessary, while other defendants may have failed to pay, as

Caplovitz (1974) found in a study of defaults, because of marital or other

problems unrelated to the transaction brought to the court.

The most recent and most comprehensive study of small claims court was

published in 1978 by the National Center for State Courts, a nonprofit

organization that works with state judicial systems to improve courts at the

state and local level (Ruhnka et al. 1978). Fifteen small claims courts

throughout the country were selected for study on the basis of variation in such

criteria as maximum allowable claim, permissability of attorneys, and use of

arbitrators. Large cities were overrepresented in this sample (New York,

Washington, D.C., Minneapolis and Dallas) and no courts were selected in the

South. Interviews were arranged with judges, and 500 cases were randomly

selected from all small claims cases in each court. The records of these cases

were examined and questionnaires sent to both plaintiffs and defendants (30

percent return rate for plaintiffs; 10 percent for defendants--a rate so low that

results were not included in the report). This study revolved principally around

policy questions such as

Should collection agencies be prohibited from using small claims
courts?
Should lawyers be prohibited?
What are the costs of using small claims courts?
Are evening and Saturday sessions useful?








24

The study also was concerned with discovering the kinds of problems faced by

the litigants in using the courts and in collecting judgements.

Ruhnka et al. admit that even after their study, they still did not know

very much about defendants, nor did they know why almost one-half of all

defendants never appeared to defend a claim against them (1978). Despite this

fact, Ruhnka et al. conclude that small claims courts "were meeting the goals

of speedy and inexpensive justice far better than the previous literature led us

to expect" (1978: 189) and that the courts "are working very well for many

litigants at a cost to the public below that projected for alternative programs"

(1978: 198).

A few small claims court researchers have examined the relationships

among small claims court participants. In a study of a New York City small

claims court, Sarat (1976) examined the connection between types of litigant

relationship and choice of type of dispute resolution. In the New York court

litigants were given a choice between arbitration and adjudication. The

arbitrators are lawyers, but not judges, and the process is to be therapeutic

rather than judgmental. Sarat hypothesized that the greater the relational

distance between litigants, the more likely the parties are to employ formal,

"all or nothing" procedures to deal with disputes. His hypothesis was confirmed

by the data--only 7 percent of those who had a long-term prior relationship

chose settlement by adjudication. Smith (1970) examined racial discrimination

in an Illinois small claims court and used several measures to examine whether

the court is biased against blacks in its daily operation. He concludes that it is

not. Dellinger (1972) was concerned with describing the relationship among

participants as it was manifested during small claims court trials in Los Angeles

small claims court. He did not find defendants to be intimidated into silence,








25

as suggested by Moulton's observational study of a California court (1969).

Instead, he found that 40 percent of the defendants were articulate in defending

themselves. Despite this fact, 85 percent of the defendants lost their cases.

Dellinger does suggest the possible usefulness of the concept of "insiders" and

"outsiders" to explain the high rate of plaintiff success in small claims courts.

He proposes that judges view plaintiffs as "insiders" and assume that they have

a valid claim. In a similar way, McFadgen (1972), part of the SCCSG,

postulates a basic communication problem to explain the disadvantages faced

by many defendants. This communication problem arises because nonattorneys

are "outsiders" insofar as they do not understand the direction of judicial

questioning, nor are they familiar with the legal framework of the dispute.

Problems also occur because of the intimidating atmosphere of the courtroom

and because of the time constraints placed on the judge.

Yngvesson, an anthropologist, and Hennessey, an anthropology student,

have also summarized the small claims court literature (1975). In addition to

presenting the methods and findings of the various studies they have questioned

several of the assumptions on which the court is based. They question whether

claims for small amounts of money and claims by poor people are always simple

claims that may be disposed of quickly. They are also skeptical of the

assumption by the judges that all claims filed are legitimate. Yngvesson and

Hennessey view the judge's role as particularly problematic in small claims

court, especially in courts where judges are expected to be conciliators as well

as adjudicators. A conciliator is ideally an active participant in determining

the true nature of the dispute and in helping the parties reach a mutually

acceptable resolution. To be successful conciliation requires time which is

usually not available in court. Furthermore, judges, accustomed to the more










passive role of adjudication, are generally not well suited for conciliation

(Yngvesson and Hennessey 1975).

Research on small claims courts has documented the types of persons and

organizations involved in the court based on the limited information available in

court records (high number of business plaintiffs, high number of individual

defendants), has shown high default rates, and has suggested problems faced by

unrepresented litigants and by judges. Previous research has also shown clear

evidence that plaintiffs almost always win, many by default. Since the

information available in records is sparse and that from questionnaires and

interviews incomplete, studies have failed to produce detailed information on

users, particularly defendants (Yngvesson and Hennessey 1975), and on the

actual process of interaction within the courtroom.

Statement of Research Problems

The primary purpose of this study of Leon County small claims court is to

explore questions raised in the anthropological literature on the nature and

effectiveness of the dispute settlement role of courts in the United States. A

secondary purpose of the study is to address some of the questions on litigants

and courtroom behavior unanswered by other studies of small claims courts.

There is a need to look beyond isolated statistics on users of the court and to

explore in detail the relationships between participants and the interaction that

unfolds in the courtroom. Cross-cultural studies of law have revealed that

different kinds of relationships and different kinds of conflict require different

types of dispute settlement. The critical issues to explore in small claims court

are what procedures are used and whether these procedures work equally well

for different litigants and different types of cases. A study of small claims

court may also be used to address broader questions raised in the anthropo-








27

logical literature contrasting law in tribal and village societies with law in the

United States. Have courts in the United States rejected the problems of the

average citizen? Has there been an increasing reliance in the United States on

formal institutions? Are formal institutions in the United States truly biased

toward the rich and powerful?

As a vehicle for describing the behavior and attitudes of all the

participants in small claims court, cases in this study are presented in terms of

Nader and Todd's (1978) components of a dispute--the item in dispute, the

parties involved in the dispute, the way in which the dispute is presented and

handled in a public forum, and the outcome and its enforcement. Because these

components are believed by Nader and Todd to have universal applicability and

because they have been used as a framework for collecting data on disputes

around the world, their use will facilitate comparison between this study and

other anthropological studies of dispute settlement. For this study, Nader and

Todd's components of a dispute have been translated into a series of questions:

Who uses the court and for what purposes? Critics have argued that small

claims courts are dominated by corporations, government agencies, and

attorneys (SCCSG 1972; Moulton 1969; National Institute for Consumer Justice

1972; Pagter et aL 1964). These writers have stressed the need for handbooks

or other tools to help equalize the chances of the unrepresented, individual

litigant in small claims court, but before these can be developed effectively, it

is necessary to know who these people are and what kinds of cases they bring to

the court. Data need to be gathered on their demographic, social, economic

and racial characteristics; on their perceptions of the court; on their

descriptions of the dispute; and on the strategies they have developed for

dealing with the court and with disputes in general.










What is the relationship between parties? Anthropologists and others, for

example Sarat (1976), consider the type of relationships between litigants and

types of claims brought by litigants to be crucial variables for determining the

appropriateness and effectiveness of different dispute settlement mechanisms.

In the Leon County court, parties with a long-term or multiplex prior

relationship and parties of equal rank may be expected to choose negotiation or

conciliation over adjudication.

What is the relationship among court personnel? What attitudes do they

bring to the process? In order to gain a comprehensive understanding of the

court, it is necessary to study the attitudes and behavior of court personnel as

well as litigants. As Nader (1972) has urged, anthropologists must begin

"studying up"; that is in order to understand social relations in complex

societies, they must begin to include the powerful as well as the powerless in

their research schemes. The behavior of judges and other court personnel is not

only influenced by the values and attitudes they bring to the court setting, but

it may also be influenced by persons with whom they have ongoing relationships.

Mileski (1971) has suggested the importance of the ongoing relationship between

judges and lawyers in lower criminal court. The prosecutor weighs his desire to

prosecute cases against his desire to maintain a positive relationship with the

judge, public defender, and other attorneys who bring cases to court. Mileski

(1971) found that all these individuals are members of a "team" that maintains

the smooth operation of the court. A similar type of team may be found in

small claims court where preliminary research indicated that many attorneys

appear repeatedly, especially those representing businesses.

What steps do the parties take to resolve the case before filing? At what

point do they decide to file in court? According to Sarat (1976) and Domanskis


-----








29

(1976) third parties are called upon to settle disputes only after other dispute

processing methods have failed. Sarat (1976) in his study of a New York small

claims court found that persons with prior relationships were most active in

prelitigation dispute resolution attempts. This finding is consistent with the

general hypothesis raised by anthropologists (Gluckman 1955; Nader and Todd

1978) that persons with ongoing relationships are more likely to resolve their

problems informally than formally. Thus, in Leon County individuals with a

long-term prior relationship may also be expected to attempt to resolve their

problems through informal channels, such as networks of friends or kin, before

resorting to a court suit.

What is the nature of the interaction between the court and the litigants?

Courtroom interaction may reveal patterns of behavior that affect the outcome

of cases as found by Mileski (1971) and Brickley and Miller (1975). This kind of

socialization behavior may work to the detriment of the defendant in small

claims court who may, in imitation of the silence of other defendants before

the judge, fail to ask a crucial question or to voice a valid defense. Judges may

also employ different styles (e.g., conciliatory versus adjudicative) with

different types of litigants or in different types of cases.

What happens to cases after they are brought to court? As anthro-

pologists have frequently pointed out, bringing a problem to a public forum is

often not the end of the conflict (Bohannon 1957; Nader and Todd 1978; Moore

1978). The effectiveness of a legal forum may be evaluated on two levels: its

ability to enforce its decision and its ability to resolve the problem brought to

it. In small claims court enforcement may be examined in terms of collection








30

of judgments issued by the court. Examination of the court's dispute resolution

function requires interviews with litigants after the case has been handled by

the court.

As an adjunct to the questions presented above, the specific studies in the

anthropological and small claims literature suggest several hypotheses to be

tested or requiring further verification with respect to the general aims of this

study:

1. The people who use the court will come from widely varying back-

grounds, will differ in their perceptions and expectations of the court, and

will use varying strategies to maximize their chances in court. Despite

the variety of individual responses, it is expected that certain patterns

will emerge:

a. Socioeconomic status (as defined by occupation, residence, in-

come, and education), race, ethnic group, and sex will be related to

the frequency with which people bring cases to court and win cases.

Higher status persons will bring more cases than lower status

persons and lower status persons will have more cases filed against

them than higher status persons (cf. Black 1976).

b. Higher status people will be more likely to respond to a

summons to appear in court than lower status people (Moulton 1969).

e. Business organizations (e.g., corporations, partnerships) and

service professionals (e.g., physicians, attorneys) will be more likely

to bring eases to court and more likely to win (Black 1976), whereas

private individuals will be more likely to have cases filed against

them than organizations.








31

d. Plaintiffs will be more likely to win than defendants (ef.

Dellinger 1972; Hollingsworth et aL 1973; Pagter et al. 1964).

e. Litigants represented by attorneys will be more likely to win

than unrepresented litigants (cf. SCCSG 1972).

2. Litigants who have ongoing, especially multiplex, relationships with

each other will be more likely to choose informal means of dispute settle-

ment than litigants who are strangers (cf. Nader 1969b; Gluckman 1955;

Collier 1979), and people of equal rank will be more likely to compromise

than people of unequal rank (cf. Black 1976; Starr and Yngvesson 1975).

Before filing in small claims court, people with these kinds of relation-

ships will have attempted to resolve the dispute by more informal means.

Within the small claims court these people will be more likely to choose

negotiation or conciliation over adjudication.

3. Within the small claims court different kinds of litigants and

different types of cases will be handled differently by judges and other

court personnel. As Black (1980) found for dispute settlement by police,

different styles (e.g., penal, conciliatory) may be used by judges for

different types of cases.

4. Higher status litigants (businesses, those represented by attorneys,

those of higher socioeconomic status) will be more likely to have decision

of the court enforced in terms of a collection of judgment than lower

status people.

The chapters that follow, with the exception of Chapters 2 and 3, are

organized around the questions and hypotheses presented in this section. The

methodology of the study is detailed in Chapter 2. Chapter 3 describes the

legal and social setting in which small claims courts in general and the Leon








32

County court in particular have evolved. This information is considered

necessary for understanding the present-day functions of the court. In Chapter

4 the characteristics of the individuals and businesses who file claims in the

Leon County court are examined. Whether these individuals and businesses

represent a broad range of types or whether they disproportionately represent

particular segments of society is explored. Typical relationships between

litigants are also described in Chapter 4. The focus of Chapter 5 is the legal

participants (judges, attorneys, and clerks) in the Leon County court. The

attitudes, values, and behavior of each of these groups in reference to the

others as well as in reference to the litigants are described. Chapter 6 is

concerned with the small claims process. It begins with a description of the

steps litigants take before filing claims and concludes with an account of what

happens to disputes after they are handled by the small claims court. In this

chapter the interaction of court personnel and litigants is described and

analyzed as it unfolds during both pretrial hearings and trials. The final chapter

summarizes the conclusions from the data analysis chapters (Chapters 4-6) and

examines the Leon County court in its wider contexts. The court is viewed in

its historical context, in light of previous research on small claims court, and in

reference to anthropological theory and concepts on dispute settlement. In

Chapter 7 recommendations for improving the functioning of the court are

made based on the findings of this study. The chapter concludes with

suggestions for future research.















CHAPTER 2
METHODOLOGY


Research in modern, post-industrial societies requires modification of

traditional anthropological methods and concepts developed for research in

small-scale societies. Methods from other disciplines with a longer history of

research in complex societies may be fruitfully borrowed. The concept of

holism evolved from attempts by anthropologists during the early part of this

century to study all aspects of a particular society, including its history and

physical environment as well as elements of its culture such as kinship, politics,

economics, religion, and art. Over the years anthropologists have become

increasingly specialized, in part, because of the increasing complexity of the

societies they have studied. Within their specialty, however, anthropologists

attempt to maintain the holistic approach, recognizing that the various aspects

of a culture influence one another and cannot be understood in isolation. The

anthropological approach also recognizes that many important questions may

arise during the research process. In contrast to many other social scientists

studying modern societies, anthropologists generally do not limit their studies

to measurement and analysis of variables determined to be important before

actual research is begun. Instead, the anthropological approach is character-

ized by open-ended research questions and multiple methods.

Anthropology's most characteristic method, participant observation, must

also be modified for a study in the United States. Many activities in









34

small-scale societies are public, and by simply being there the anthropologist is

able to record much valuable information. Malinowski describes how he

gathered information in a Trobriand Island village in the early 1900s:

As I went on my morning walk through the village, I could see intimate
details of family life, of toilet, cooking, taking of meals; I could see the
arrangements for the day's work, people starting on their errands, or
groups of men and women busy at some manufacturing tasks. Quarrels,
jokes, family scenes, events usually trivial, sometimes dramatic but
always significant, form the atmosphere of my daily life as well as theirs.
It must be remembered that natives saw me constantly every day, they
ceased to be interested or alarmed, or made self-conscious by my
presence. (1961:7)

Because Malinowski was an outsider, he was also permitted to ask

questions that would have been considered inappropriate and rude if asked by

members of the village. In contrast to behavior in small-scale societies such as

the one described by Malinowski, much behavior in a society such as the United

States occurs in private and by telephone and writing. As a member of the

society under study, the anthropologist in the United States must also observe

certain social conventions and is not able to assume so easily the role of the

"nosy outsider" as Malinowski was in the Trobriand Islands. Thus, it is

frequently necessary for the anthropologist in modern societies to take a more

indirect approach to data gathering. Interview schedules and questionnaires are

frequently the only means of gathering data on behavior, so much of which

occurs in private.

There are also advantages to research in complex societies. Complex

societies produce a wealth of written of records which may be used in a number

of ways. They may be used, as ethnohistorians have, to study changes within an

institution or society over time. They may also be used to test hypotheses

developed through participant observation or as a sampling frame for interviews

or observation. Sampling of, for example, a large number of legal ease records


~








35

further provides the researcher with a means of measuring the representative-

ness of cases studied in-depth. This kind of check is especially important in

studies of formal institutions in modern societies where there is usually nothing

linking the numerous clients to one another except the institution and where

many clients use the services of the institution only once. It is thus very

difficult to assess the representativeness of those observed and interviewed

without knowing the range and proportion of different types of clients.

Concepts and Definitions

This study is concerned not with an examination of law as an abstract set

of rules, but with description of the social evolution and handling of disputes

brought to a small claims court. In order for a case to be a dispute, it must be

contested. Much of the work of the court does not involve disputes, but entails

the routine processing of uncontested debts. Gulliver (1969) defines a dispute

as a disagreement between parties that stems from the perception of an

individual or group that rights have been infringed. A disagreement becomes a

dispute when it is raised in a public arena. Thus, two distinguishing elements of

a dispute are disagreement between parties and use of a public forum such as a

court. The dispute may be only one stage in a conflict between groups or

individuals that has begun years before it reaches a public forum and that may

continue for years afterward (Nader and Yngvesson 1973).

Handling of the dispute in a public forum may take one of three basic

forms: negotiation, mediation or conciliation, and adjudication. Gulliver (1963)

describes negotiation as a purely political process characterized by the lack of

third party intervention. In negotiation in small-scale societies each disputant

is assisted by supporters, and there are usually not gross discrepancies in power

between the two sides. In these eases, compromise is the most common result








36

and the ultimate determining factor in the outcome is relative strength of the

parties and not application of a particular standard or rule. Compromise is also

frequently the result of mediation or conciliation. Although the terms

mediation and conciliation are frequently used interchangeably in the dispute

settlement literature (for example, Collier 1975; Nader and Todd 1978; Eckhoff

1966; Black 1980), they have slightly different meanings within the field of law.

According to Black's Law Dictionary, conciliation is "the adjustment and

settlement of a dispute in a friendly, unantagonistic manner, used in courts

before trial with a view towards avoiding trial and in labor disputes before

arbitration" (1979: 262), whereas mediation is "Intervention; interposition, the

act of a third party intermediating between two contending parties with a view

of persuading them to adjust or settle their dispute. Settlement of dispute by

action of intermediary (neutral party)" (1979: 885). The difference between

conciliation and mediation is the degree of participation by the third party. In

mediation the third party takes a more active role in helping the disputants

reach a settlement than in conciliation. The conciliator may simply urge the

parties to try to settle their conflict through negotiation. In contrast, the

mediator takes a stronger approach, and may offer solutions to the dispute.

Although these solutions are only suggestions and cannot be enforced, the

mediator may threaten to ally himself with one of the parties if the other does

not give in (Eckhoff 1966). Unlike the decision of the mediator, the decision of

the judge is binding. The judge's task is not to try to reconcile the parties by

helping them reach a mutually acceptable solution to their conflict as is the

task of the conciliator or mediator. Rather the job of the judge is to determine

which party is right according to the law (Eckhoff 1966; Nader 1969). The

mediator looks forward to the future of the relationship between parties,










whereas the judge looks back to precedent and statute (Eckhoff 1966).

Although small claims court is formally an example of adjudication, concilia-

tion, negotiation, and occasionally mediation may be observed within the

context of the Leon County court.

Several other concepts need to be defined for this study. Definitions of

multiplex, simplex, and ongoing relationships are necessary for testing the

hypotheses about types of relationship and preference and effectiveness of

different dispute settlement mechanisms. Multiplex relationships are personal

relationships. In contrast, simplex relationships, in their most characteristic

form, entail a simple business or economic relationship. In simplex relation-

ships the participants may not even know each others' names, whereas in

multiplex relationships people are linked in many different ways. Multiplex

relationships are more common in small-scale than in complex societies, but

examples of multiplex relationships may be found in all societies. For instance,

in the United States kin, friends, neighbors, and coworkers are each linked in

multiplex relationships. Either multiplex or simplex relationships may be

ongoing. Ongoing is defined as the expectation by the parties that the

relationship will be continued in the future. The concepts of winning and

enforcement also require some explanation. For this study of small claims

court winning is defined as receiving a judgment from the court and enforce-

ment as having the judgment satisfied.

Throughout this study, it has frequently been necessary to use native

terminology of professional legal practitioners to describe the formal workings

of the court. The meanings of these terms for the legal profession are very

specific and are frequently at variance with their everyday meanings. In order








38
not to break the flow of the text by defining these terms as they appear, they

are defined in a glossary at the end of the document.

Research Methods and Techniques

This study entailed a combination of qualitative and quantitative research

methods. Application of a wide range of methods to one setting increases the

overall credibility of the study by providing a means of cross-checking and

expanding information (Pelto and Pelto 1978). Quantitative methods were

applied to data in the court records and to quantifiable aspects of pretrial

hearings. They were used to supplement more descriptive, traditional ethno-

graphic methods of informant interviewing and observation. Quantitative

methods are valuable insofar as they are able both to support hypotheses

generated through ethnographic field work and to "reveal unexpected facets of

the field situation just because, compared to intuition, they are less under

control of our prior expectations" (Johnson 1978:46). Qualitative methods, on

the other hand, are necessary to explain what the numbers generated from

quantitative methods mean in terms of human behavior. The specific methods

and techniques used in this study include event analysis, observation, interviews

and questionnaires, network analysis, statistical tests, and participant observa-

tion.

Event Analysis

Event analysis has most commonly been used by anthropologists in

connection with major public events such as fiestas, religious ceremonials, and

market days (Pelto and Pelto 1978) but may also be fruitfully applied to

courtroom events. Not only are these occasions relatively accessible to

anthropologists, but because these events mirror important social relations in a

society they yield a wealth of information within a short period of time. In








39
Leon County small claims court, event analysis was based on the categories of

information detailed by Pelto and Pelto (1978): kinds of persons involved in the

action, ways in which participants were grouped, sequences of action, spacing

of participants, symbols of status, and groups and individuals with the most

decision-making power. These kinds of information were gathered during

pretrial hearings and during hearings of contested cases.

In anthropological studies of law, the case study method may be viewed as

a particular type of event analysis (Pelto and Pelto 1978), and has been used

both as a data gathering technique and a unit of analysis (Epstein 1967). The

case study method originated in medical and psychological research, "where it

refers to a detailed analysis of an individual case that explicates the dynamics

and pathology of a given disease" (Becker 1967:232). It has become a major

mode of social science analysis and has been applied to organizations, communi-

ties, and individuals. The case study method has "played an important role in

every anthropological study of law since the pioneering work of Llewellyn and

Hoebel" (Collier 1975:139) and "the thorough examination of detailed case

material is likely to be the most rewarding procedure, as it has already been in

the best literature" (Gulliver 1969:13).

In this research forty-two contested cases--hence, actual

"disputes"--were selected for extensive study by quota sampling over a period

of a year and a half. In quota sampling, characteristics of the general

population are identified and then cases are chosen to match these characteris-

tics. A simple random sample of cases from the records for 1979 was drawn to

determine the range of cases filed in Leon County small claims court on the

basis of several characteristics. These characteristics included type of case

(for example, business vs. business, individual vs. individual), type of litigant








40

(for example, sex, race, socioeconomic status), and attorney representation.

Cases were then selected for extensive study based on their representativeness

in terms of these variables. Cases selected were observed during both pretrial

and trial hearings, participants were interviewed, and court files were

examined. Capsulated sketches of each of the case studies used as examples in

the text are given in Appendix A so that the details of a case do not have to be

repeated each time the case is mentioned.

Observation

Approximately 85 percent of all cases filed in Leon County small claims

court are resolved during pretrial hearings. Thus in order to achieve a

well-rounded description of the court and its functions, it is necessary to

sample those cases as well as the unresolved (i.e., contested) cases that are

scheduled for formal hearings. Approximately 800 pretrial cases were observed

over a year and a half. All cases scheduled for a particular time and day were

observed (from 30 to 70). An effort was made to observe approximately equal

numbers of cases before each of the three county judges. Because cases are

processed very rapidly during pretrial hearings (as many as 60 to 70 per hour), a

preceded observation form was developed and used (see Appendix B). Informa-

tion recorded on these forms included general case data such as type of case,

item, dollar value of disputed item, and outcome. Data on litigants and

attorneys not available from case records were also recorded including sex,

race, and appearance (dress, grooming, approximate age). These data are

important as indicators of the socioeconomic status of the participants.

Because one of the goals of the study is to describe how disputes are handled by

the court, verbal exchanges between the judge and the parties were also

recorded as completely as possible on the observation form. Several pretrial


I








41

hearings were observed during the course of developing and testing the

observation form. These cases were excluded from the final analysis. Thus the

analysis is based on 549 instead of 800 cases. A trial observation form for the

forty-two contested cases was also developed and used (Appendix B). Trials

occur much less rapidly than pretrial and thus more information may be

recorded for each case. In addition to the categories described for the pretrial

observation form, the trial observation form included space for mapping

physical location of participants. Speech and demeanor of participants were

also noted on trial observation forms as well as the amount of time (measured

in minutes) each party spoke.

Interviews and Questionnaires

Plaintiffs, defendants, lawyers, and judges in the cases selected for

intensive study were interviewed. Legal personnel were interviewed informally

in the court and litigants were interviewed in their homes. Closed response

questions -- those which require people to choose between alternative answers

to specific questions -- were not used. Instead, people were encouraged to

describe their experience with small claims court in their own terms, expressing

their particular values, strategies, and goals. Standardized interview guides in

which information desired from each respondent has been tentatively translated

into questions were developed (Appendix B). Information was gathered in

several broad categories: description of dispute, including assistance sought

and from whom, relationship of parties, feelings about the court, practical

problems with the court, suggestions for reform, and dispute handling in

general. General or "grand tour" questions (Spradley 1979) such as "could you

start at the beginning and tell me how the problem between you and 'x'

started?" were used in combination with more specific questions such as "Did








42

you see a lawyer?" and "How much time did you spend going to court?"

Litigants were encouraged to talk freely, and questions were generally asked

only to clarify points or when there was a pause in the informant's oral account.

The order of questions asked also varied according to litigants. For example,

some litigants appeared to be overwhelmed and uncomfortable with general,

open-ended questions. Instead of responding with a rush of details as other

litigants did, they responded with silence. In these instances, more specific

questions were asked first. At the end of the interview, litigants were asked

questions about marital status, age, education, place of birth, occupation, and

occupation of spouse. This combination of different types of questions was used

to gather two different kinds of information. The open-ended questions were

used to elicit the litigants' view of the dispute and the court, whereas the more

specific questions (for example, did you talk with a lawyer about the case?)

were used so that this study would be comparable with other studies of small

claims court.

Data on attorneys, judges, and other legal personnel in Leon County small

claims court were gathered primarily from informal conversations. Cases are

frequently cancelled at the last minute which leaves judges, attorneys, and

clerks with free time before the next case. These short blocks of time were

found to be ideal times to talk informally to legal personnel both about the

court in general and about specific cases. Judges were especially candid during

these periods. They patiently explained legal issues and detailed how they

intended to rule on particular cases. The judges also discussed their other

duties and their thoughts toward the law and the court in general. These

conversations were enormously helpful in piecing together the judges' perspec-

tives on the court and the litigants.







43

The data base on legal personnel and to a small extent on litigants was

supplemented by analysis of interviews and questionnaires administered by the

Office of the State Courts Administrator under the Florida Supreme Court in

its statewide study of thirteen small claims courts. The study included small

claims courts in Bradford, Brevard, Collier, Flagler, Lee, Marion, Martin,

Okaloosa, Orange, Pinellas, Sarasota, Taylor, and Washington counties. All

judges (42) and clerks (13) were interviewed in these courts by personnel from

the Office of the State Courts Administrator. These interviews consisted

primarily of open-ended questions designed to elicit respondents' attitudes

toward the court and their perceptions of any problem areas. Judges and clerks

were also asked about proposed reforms such as night court and use of

paralegals to assist litigants. Both judges and clerks were asked for suggestions

for improving the functioning of the court. A random sample of 250 attorneys

who had filed in one of these thirteen courts was sent a questionnaire. The

questionnaire asked for information on type of clients, type of practice,

opinions toward small claims procedures, attitudes toward litigants and court

personnel, and suggestions for improving the process. The response rate to this

questionnaire was 50 percent. Two hundred and fifty randomly selected

litigants were also sent questionnaires by the Office of the State Courts

Administrator. They were asked about their attitudes toward the court as well

for basic demographic information. Approximately 25 percent of the plaintiffs

and 10 percent of the defendants responded to the questionnaires.










Network Analysis

Network analysis was applied to the interview and observational data on

small claims court participants. This method, which entails delineation of the

social relationships in which each person is embedded instead of analysis of an

enduring system of groups (Boissevain 1974), is especially applicable to complex

societies, where individuals interact in a wide range of relationships. In this

research, the social networks used by plaintiffs to find out about small claims

courts are described as well as the networks mobilized by litigants in an

attempt to win their cases. Attention is also given to the content of the advice

about small claims court litigants receive from others. For the forty-two cases

selected for in-depth study, the question of the relationship between case

outcome and the use and type of network is explored. For example, Boissevain

(1974:5) has suggested that people in conflict "won not so much because they

were right, that is, had merely the most telling argument or defended more

important values than other opponents, but because they have access to

influential allies who are able to bring pressure on their rivals." Collier (1975)

and Gulliver (1971) have hypothesized that incorporation in powerful networks

may influence an individual's decision to seek a legal remedy in the first place.

Legal personnel, as well as litigants, are embedded in networks that may

influence their behavior in regard to particular cases. These networks of legal

personnel are also described and examined for the possible influence such

networks might have on behavior observed in the courtroom.

Quantitative Techniques

In addition to cases selected for observation and for in-depth study, a

simple random sample of case records from the previous year (1979) was drawn.

The size of the sample was 361 cases out of a population of 7,000 representing a








45

confidence level of 95 percent (Hendel 1977). The sample size was reduced to

291 after it was discovered that county civil cases (claims between $1,500 and

$2,500) and eviction actions were filed with small claims. These cases were

excluded from analysis. The court records were sampled for two major reasons:

in order to insure comparability between this study and other studies of small

claims courts which have been structured around data available in the records

and to provide a framework for the more ethnographic aspects of the study.

Sampling of the records provides a broad overview of the types of cases brought

to the court which cannot be gained through the case study approach. Case

studies are of necessity limited to a small number of cases. Court records were

used to test hypotheses suggested by others about the types of litigants who

bring cases to court and those who are most likely to win. Information from

records was gathered about the following: names and addresses of litigants,

type of case, item in dispute, amount of claim, whether claim is contested,

winner, judge, business scope and type of litigants, attorney representation, sex

of litigants and attorneys, collection of judgment, date of original incident,

date of filing, date of hearings, and date and type of judgment (see Appendix B).

The addresses of the litigants were matched to census tracts and used as a

measure of socioeconomic status. Frequencies were tabulated for nominal level

variables, such as item in dispute, and averages and ranges were calculated for

interval level variables, such as amount of claim and amount of time between

steps in the small claims court process. Nonparametric tests of association

were then used to test relationships between variables.











Participant Observation

Participant observation within both the court and the community was used

throughout the year and a half study period. The office of the deputy clerks

proved to be an unexpectedly rich setting for learning about the court. During

the field research, I spent approximately 200 hours in this office. My primary

function was to complete the information forms for the case file sample, but I

also spent time listening and observing and talking informally with the office

staff. As time went on, I became increasingly interested in the attitudes and

behavior of the members of this group and saw them as a critical, although

frequently overlooked, part of the court.

Within the community, participant observation was used to discover

means other than the court that people use in an effort to settle dispute.

People in the researcher's personal network were used. These people include

coworkers in a university research center, friends and acquaintances acquired

from over five years residence in the community, and friends and relatives of

the researcher's husband who reside in the county. Since information gathered

through these sources is intended to be merely suggestive and supplemental to

the main focus of the project on small claims court, no attempt at sampling was

made.

The methods and techniques described in this chapter were selected to

yield information on the nature and effectiveness of the dispute settlement role

of a lower civil court in the United States. These methods were chosen

specifically as a means of gaining first-hand knowledge of the day-to-day

operations of the court, since this kind of information is crucial for under-

standing the court's role in the community. Before the specific findings








47

regarding the court and its participants are presented, it is necessary to

describe the context in which the court has evolved. Thus, the next chapter is

devoted to detailing the social and legal setting in which the court is found.















CHAPTER 3
BACKGROUND AND SETTING


Before analyzing the results of this study, which examines a single small

claims court during the period from January 1980 to June 1981, it is important

to present the historical and social contexts within which the courts in general

and the Leon County court in particular have developed. The Leon County

small claims court has been shaped and influenced by many factors, some

national and some local. Like all social institutions, the court does not exist in

a vacuum but is part of many wider historical and social patterns. In this

chapter, some of these patterns will be described. First the local setting will

be presented: Leon County's history, economy, and demographic structure will

be outlined. Next attention will be given to the larger legal settings of which

the court is a part. Aspects of the American legal culture that have a bearing

on the development of small claims court will be presented, and the evolution

of the court will be traced briefly on national, state, and local levels. Lastly,

the current state court structure will be described and the current formal

organization of the small claims court in Leon County presented.

The Local Setting

Leon County, in northwest Florida, is the site of the capital of one of the

fastest growing states in the nation. In 1980, with a population approaching 10

million, Florida had the second largest population in the South and the seventh

largest in the United States (U.S. Bureau of the Census 1980). In the South its

population was exceeded only by that of Texas. Much of this growth has

occurred in the southern and central portions of the state, which attract large








49

numbers of tourists and retirees. Leon County, however, has experienced a

much higher rate of growth than other northern counties. Unlike other southern

states, Florida has a diverse population, including many northerners and Latin

Americans. As the center of state government and the location of two state

universities, Leon County has also attracted a varied population, particularly in

recent decades.

Much of the population growth in southern and central Florida has

occurred since World War I although there were small settlements prior to this

time. Settlement of much of northern Florida began nearly a century earlier.

In 1821 when Florida became a United States territory reports of abundant,

cheap land brought slave-holding cotton planters from worn-out farms in

Maryland, Virginia, the Carolinas, and Georgia into the northern part of the

territory. The Florida territory was virtually unpopulated except for the

Seminoles who had begun to filter into Florida from neighboring states in the

late 1700s. Tallahassee, named territorial capital in 1823, became the center

of slave trade for Florida with Leon County the center of plantation

agriculture. Planters bought thousands of acres in Leon County and became

leaders in business, banking, and politics as well as agriculture (Paisley 1968).

By 1860 agriculture products, especially cotton, had become the economic

mainstay of the county. In that year Leon County produced 16,686 bales of

cotton -- 5,839 bales more than its nearest Florida rival, Jefferson County

(1968:7). Most of the county's population of 12,343 (including 9,089 Negro

slaves, 3,194 whites, and 60 free Negroes) were dependent on agriculture. The

remainder of Leon County's residents were employed as tradesmen, mechanics,

teachers, lawyers, preachers, state officials, and lumbermen. Although

production declined, cotton growing continued during the Civil War despite








50

difficulties in marketing the crop through the blockade. Most of the activity in

Florida during the war was along the coast. Damage to the interior, including

the Leon County plantations, was prevented by the Battles of Olustee and

Natural Bridge.

After the Civil War, most Leon County planters tried to revive the old

plantation system. Most former slaves remained on the plantations, working for

wages in the form of a portion of the crop. Many also became tenant farmers,

pledging various amounts of their cotton crop as rent for the land they farmed.

Tenant farmers were drawn into an ever increasing cycle of debt by buying

mules, tools, and food from the landowner on credit. At the end of the year, a

tenant's debt commonly exceeded his income and was thus carried over to the

next year when the debt became even higher (Paisley 1968). For fifteen years

after the war, the number of blacks in Leon County increased rapidly as many

former slaves came to Florida from Georgia and South Carolina, where

destruction of plantations had been widespread. By 1870 there were 12,341

Negroes and 2,895 whites in the county. The number of Negroes in the county

increased to 16,840 by 1880 and the number of whites decreased slightly to

2,822. In 1880, 41 percent of Leon County's tilled land was in cotton -- more

than any other Florida county (Paisley 1968).

After 1880 cotton production in Leon County began to decline. The lack

of railroad connections, the steady fall in cotton prices, the spread of the boll

weevil, and the belief among planters that an era had ended all contributed to

this decline (Tebeau 1971; Paisley 1968). Increasing numbers of planters began

selling entire plantations, often for as low as a few dollars an acre. Many of

these plantations were sold to wealthy northern industrialists who were not

interested in farming, but who were interested in having large tracts of lands on








51

which to hunt. Between 1900 and 1950 the amount of land in the county held

for game hunting increased 900 percent (Paisley 1968). Most of Leon County's

new, large land owners were casual, part-time residents, uninterested in the

affairs of the county and the state.

The conversion of the plantations from cotton to game had a profound

effect on the county's economy and population. Tenant farmers were not

allowed to engage in any activities that might interfere with the propagation of

quail (Paisley 1968). Cultivating large fields, raising livestock or poultry, and

building fences were all prohibited. Other land in the county was also being

closed to farming by the expansion of Tallahassee, the county seat as well as

the state capital. In the southern part of the county the soil was poor and more

suitable for forestry than for agriculture. Tenant farmers, the majority of

whom were black, suffered the most from conversion of the plantations. Their

opportunities became limited to jobs on plantations in the stables, around dog

pens, on hunting wagons and in households. The black population in the county

reached a peak in 1880 when blacks outnumbered whites 6 to 1. By 1890,

however, blacks began to leave the county to work on railroads and phosphate

mines to the south. Many blacks also migrated to cities in the North. In the

early 1900s state government and the growth of two state universities, the

Florida State Normal and Industrial College (now Florida A & M University) and

the West Florida Seminary (now Florida State University), began providing some

jobs for county residents. This growth in government employment gained

momentum after World War II and by 1954 federal, state, and local government

payrolls accounted for 40 percent of personal income in Leon County. By 1964

this figure had increased to slightly over 50 percent. By 1978 it had dropped to










slightly less than 50 percent (Tallahassee-Leon County Planning Department

1979a).

Growth in the economy was accompanied by growth in population. Leon

County's population has grown steadily since 1930 (Table 3.1). Much of this

growth has occurred in Tallahassee, the state capital and the only incorporated

area in the county. Between 1970 and 1978, however, for the first time

suburban portions of Leon County were growing faster than the city of

Tallahassee. During this time Leon County was one of the faster growing

counties in the nation (Tallahassee-Leon County Planning Department 1979b).

This increase resulted from continued growth in government and university

employment. In addition as South and Central Florida were becoming more

densely populated, North Florida began to attract more people both from these

areas and from other states (Winsberg 1981).



TABLE 3.1
POPULATION GROWTH


Tallahassee Leon County
Average Annual Average Annual
Year Population Increase Population Increase


1930 10,700 23,476
1940 16,240 5.2% 31,646 3.5%
1950 27,237 6.8% 51,590 6.3%
1960 48,174 7.7% 74,225 4.4%
1970 72,586 5.1% 103,047 3.9%
1980 90,000 3.0% 140,617 4.6%


Source: Tallahassee-Leon County Planing Department 1979b.








53

Leon County's population today is primarily urban. In 1978, 64 percent of

the population was within the corporate limits of Tallahassee and 85 percent

was within the Tallahassee suburban area. Ninety percent of the population was

living on 10 percent of the land (Tallahassee-Leon County Planning Department

1979b). By 1978 the minority population (black and other nonwhite races) had

decreased to 20 percent of the total population (University of Florida, Bureau

of Economic and Business Research 1979). Leon County's population, because

of the presence of two universities and a community college, has a

disproportionate number of young people. In the fall of 1980 Leon County's

population included 30,874 students, many of whom were from other parts of

the state, particularly South Florida, the Tampa-St. Petersburg region, and

Jacksonville. The median age of county residents in 1970 was 23.5 years

(Tallahassee-Leon County Planning Department 1979b).

The per capital income in Leon County in 1977 was $5,429, more than

$1,000 less than state figure of $6,684 (Fernald 1981). The Florida counties

with the highest per capital income are along the southern gulf and Atlantic

coasts. Leon County's per capital income is, however, considerably higher than

those of surrounding counties, which are heavily dependent on agriculture,

forestry, or fisheries. In 1977 Gadsden County had a per capital income of

$2,838; Jefferson, $3,154; and Wakulla, $3,489 (Fernald 1981). Leon County's

relatively high per capital income is explained by the high percentage of

government employment. As noted in Leon County the government sector

accounts for approximately 50 percent of all employment. The trade and

service sectors account for 16 and 9 percent respectively while manufacturing

and agriculture both play a minor role in the county's economy. During the

recession of the mid-1970s the average annual unemployment rate in Leon








54

County at 4-5 percent was half that of the nation and much of the state

(Tallahassee-Leon County Planning Department 1979a).

Leon County's original settlement and development based on plantation

agriculture parallel the settlement and development of much of the southern

coastal plain. Northern Florida is distinct physically and culturally from

peninsular Florida and shares many of the physical and cultural traits of the two

states immediately to the north, Georgia and Alabama (Patton, Purdum, and

Unger 1981). Cotton and timber were the mainstays of the region's economy

before the Civil War, just as they were in Georgia and Alabama. Agriculture

and forestry are still the major components of the economy of many northern

Florida counties.

The culture that developed in Leon County generally conforms to the

plantation model of Southern culture described by Pearsall (1966) with its small

but powerful ruling class and large group of Negro slaves. Even in areas of

plantations, another model of Southern culture was evident, variously called the

frontier model (Pearsall 1966), the plain folk model (Hill 1977), or the Cracker

culture (Taylor 1970). Plain folks established small farms in the piney woods

and hills. Their culture was characterized by self-sufficiency, independence,

and distrust of strangers (Pearsall 1966; Taylor 1970).

Leon County, however, is unique and, although it shares a tradition with

much of the South, it cannot today be classified as a typical southern

community in the sense described by Arensberg (1955). To Arensberg the

distinctive form of community in the South was and is the county. "Dispersed a

day's ride in and out around the county seat, that community assembled planter

and field- or house-hand from the fat plantations, free poor white or Negro

from the lean hills and swamps, for the pageantry and the drama of Saturday








55

around the courthouse, when the courthouse, the jail, the registry of deeds, and

the courthouse square of shops and lawyers' row made a physical center of the

far-flung community" (p. 106). This model may still have some relevance to

the counties surrounding Leon County where the population has remained low,

where the people continue to depend on agriculture and forestry for their

livelihood, and where stores are still located surrounding the central court-

house. Leon County, in contrast, is the location of Tallahassee, the capital of

one of the fastest growing states in the nation, and a such has attracted many

people with social, political and economic ties and interests outside of the

county. On a typical Saturday in Leon County, the downtown area is deserted

and people are likely to be found at one of the several suburban shopping malls.

The structure and function of community life in Leon County reflects

changes that have occurred throughout America in recent decades. One of

these changes is the reduction in contrast between rural and urban communities

(Warren 1972). Chain stores (usually clustered in shopping malls), supermarkets,

and branch banks are located in small towns as well as cities. The use of land is

also similar, with the ideal pattern being single houses on relatively large plots

of land. The rural community is no longer largely self-contained; members of

all communities, including rural communities, are linked formally and

informally to individuals who reside outside of the local area. The community

structure has become more complex as new organizational forms are layered

onto old (Arensberg and Kimball 1965). In the case of Leon County, a

traditional agrarian economy has been supplanted by one based on government

employment and on the trade and service sectors. The growth in state

government and in the universities has brought new people and new ideas to the








56

community, but, as an examination of the court will show, in some ways

Tallahassee remains a close-knit conservative community.

The Greater Legal Setting

This study of Leon County small claims court needs to be viewed not only

in the context of the economy, demography, and history of the county but also

in the context of the development of law, particularly as it has affected lower

civil courts, in the United States and Florida. The most comprehensive volume

on the history of American law was written by Lawrence Friedman and

published in 1973. Unless otherwise noted the sketch of American law in the

section that follows is based on Friedman's book.

American law was derived primarily from English law. English law is

"common law" and is based on the decisions of common law judges. In contrast

most European systems of law, such as those of Germany and France, are

modernized forms of Roman law embedded in codes or statutes. By 1600

English lawyers were professionals who were trained not at universities but at

"Inns of the Court," where their education was practical rather than

theoretical. Common law at this time revolved around two basic themes:

formal legal process and the law of the land. The clients of common law courts

were members of the aristocracy and represented only a small percentage of

the population. The majority of the population was subject to the law of the

manor, which varied from locality to locality. Courts of equity, administered

by literate clergymen, also existed in England. Members of these courts had

the power to dispense with what they considered to be unfair rules. Under

common law a person could only recover a payment of money, but under equity

other remedies were available including compelling of a party to perform a










specific action. The jury system, popularly considered a hallmark of the

American legal system, originated in the courts of equity.

At first the American colonies had simple, undifferentiated court struc-

tures in contrast to the complex multiplicity of courts in England. In early

settlements, such as Virginia, laws were laid down much like military orders.

Judicial business was not distinct from public business in general: the same

individuals established laws, enforced them, decided cases, and ran the colony.

Each colony had a charter, which was typically modeled after the trading

company charter and as such resembled the charter of a business corporation.

These charters established general courts composed of all free men. The courts

were equivalent to meetings of corporate stockholders and functioned more as

administrative bodies and legislatures than as courts in the popular sense of

forums for hearing criminal and civil cases. Soon, however, county courts were

established to hear civil and criminal cases as well as to fulfill administrative

functions. In many colonies justice of the peace courts were founded in towns

to hear cases involving small sums of money. These courts were presided over

by nonattorneys and few records were kept. Development of special courts also

became common. In 1639 Massachusetts established strangers' courts for

speedy processing of cases involving strangers who could not stay long enough

to attend the ordinary courts of justice. In Pennsylvania the Quakers, who

disliked formal law and litigation, appointed three peacemakers to settle

disputes, while the Southern colonies created special summary courts for slaves.

All colonial courts were speedy and cheap compared with their English

counterparts; in the colonies judgments were usually rendered on the day of the

trial. Early county court records reveal that sanctions were most often brought

against members of the lower social strata -- servants, the poor, and slaves.










After the American Revolution, there was general interest in reform of

the legal system, which the country's new leaders criticized as remote from the

needs of ordinary people, biased toward the rich, and irrelevant to the

businessman. By the nineteenth century the legal system began to influence

more and more people as the economy expanded and increasing numbers of

people began to own land and to operate businesses. The nineteenth century

also saw the widespread establishment of corporations as a form of business

organization. Before this time most incorporated organizations were munici-

palities, charities, and churches. The colonial courts had been concerned with

maintaining order and punishing sinners while the nineteenth century courts

were dominated by property and contract cases. There was public sympathy for

business, productivity and growth, and the law favored manufacturers and

producers. Most court decisions in the nineteenth century agreed with the

common law doctrine of "Caveat emptor" -- "let the buyer beware." According

to this doctrine individuals are allowed to enter freely into bargains but once

they do so are held in strict compliance. With the expansion of business came

the widespread use of credit. Because so many businesses bought on credit,

debt began to lose its stigma and imprisonment for debt was abolished. Many

lawyers, however, spent a great deal of their time collecting on promissory

notes, the primary form of credit.

In the last half of the nineteenth century, major social and economic

changes occurred in the United States. The population increased and cities

grew enormously, mainly as a result of immigration; the western frontier was

settled; the country became a major industrial power; transportation and

communication were vastly improved; and overseas expansion began. Before

1850, most factories, except for textile factories, were small enough so that








59

the proprietor was able to establish a personal relationship with each of his

workers (Cochran 1972). After 1850 the rich became even richer and expanded

their factories, mines and banks. A huge number of immigrants entered the

United States during this period -- about one-half million in 1880 alone

(Friedman 1973:484) -- and provided cheap labor for the factories, mines, and

mills.

Toward the end of the nineteenth century the lower courts began to

process a huge number of small cases, the most common of which were debt

collections, divorces, and mortgage foreclosures. Major businesses had begun to

avoid the courts, preferring to settle disputes among themselves and to use the

courts only for routine matters such as debt collection. As a result of the

industrial revolution more and more torts, especially personal-injury actions,

were filed in the courts. Many of these cases were filed against railroad

companies whose machines killed livestock and set fire to crops as well as

injuring individuals. By 1910 there were 25,000 annual deaths and millions of

injuries from industrial accidents in the United States (Cochran 1972). By the

end of the century consumers began to oppose manufacturers in court. These

persons were small merchants and farmers who were dissatisfied with supplies

they received from manufacturers. Ordinary purchasers unhappy with products

did not regularly file cases in court until the growth of the consumer movement

of the 1960s.

In the twentieth century, trends begun in the nineteenth century

continued: the population grew, cities expanded, businesses became larger, and

fewer people lived on the land. Between 1890 and 1970 the percentage of

family and tort cases filed in the courts increased dramatically while the

proportion of property and contract cases fell (Friedman and Percival 1976).








60

During the Depression of the 1930s people began to make greater demands on

the federal government for jobs, relief, and economic reform. Federal law,

particularly in the areas of taxation, business regulation, and civil rights, grew

enormously. With the civil rights movement of the 1950s and 1960s, the federal

courts became a forum for protection of civil liberties. The twentieth century

also witnessed the rise of administrative, land use, environmental protection,

and consumer protection law.

Another twentieth century trend that has had an effect on court case-

loads, particularly of lower civil courts, is the rise in the amount of consumer

debt, especially since World War II. From 1967 to 1979 alone Americans' per

capital debt -- mortgages, credit-card balances, automobile loans and other

loans -- rose from $2,028 to $5,625 (U.S. News and World Report 1979:57). The

average household debt equaled 83.3 percent of the household income after

taxes in 1978, compared with 79.5 percent in 1977 and 36.9 percent in 1950. An

increasing number of families are relying on the incomes of both husbands and

wives to meet day-to-day living expenses including the repayment of mortgages

and other debts. Problems repaying these loans arise if one worker loses his or

her job. Credit is also easier to obtain than it was 10 or 20 years ago and

people, particularly young adults 25-34 years old, are taking advantage of the

situation to accumulate goods that took their parents years to acquire. In an

interview with U.S. News and World Report, Robert E. Gibson, President of the

National Foundation for Consumer Credit, revealed that many people are using

credit not for convenience but to supplement family income and that a typical

family seeking credit counseling owes from ten to fourteen creditors (1979:59).

Many creditors who fail to receive payments from consumers file cases in lower

civil courts in an effort to collect the debt.








61

From the few available studies, the courts in Florida appear to have

undergone an evolution similar to that detailed by Friedman (1973) for

American courts in general. When Florida became a United States territory in

1821 as a result of a treaty with Spain, it was very sparsely populated. Most of

the Spanish had settled in St. Augustine and Pensacola and the aboriginal

population, once found throughout Florida, had disappeared from disease and

war a century before. The Seminole population of North Florida had already

been pushed further south into the peninsula as a result of the First Seminole

War. There were no competing systems of law in Florida in 1821 when Andrew

Jackson imposed common-law procedure on the territory (Friedman 1973).

Tallahassee, being halfway between St. Augustine and Pensacola, was selected

as the capital of the territory in the fall of 1823. By the spring of 1824 the

first settlers arrived and a log cabin was built for the legislative council. In

1825 attorneys met in Tallahassee to organize a court of appeals for the

territory (MeCord 1956).

The main litigation during territorial times concerned promissory notes,

mortgage foreclosures, and property salvaged from wrecked vessels off

Florida's coast (McCord 1956). In contrast to the twentieth century, there were

no appeals in divorce or personal injury cases. McCord summarizes several

typical cases brought before the court of appeals in the 1820s and 1830s. In

Buckra Woman v. Philip R. Younge the Buckra woman attempted to recover

money from P. R. Younge based on a promissory note, which stated: "Due to

bearer, Payne's sister, for balance on John Forester's order for cattle received

by him on our account in August 1804 is 6,800 Chalks, and now due to her 4,300

Chalks. St. Augustine, E. F. 22 April 1808. Ph. R. Younge." Because no

evidence was presented in court that the note had been transferred from










Payne's sister to the Buckra woman or that the Buckra woman was Payne's

sister, the Buckra woman lost the case. Another case, City of Tallahassee v.

Robert Butler, entailed charges against Robert Butler, the surveyor of the

territory, for using material claimed by the city. Both sides cited various

territorial acts and the court held that Robert Butler had a legal right to

remove the material. The other three examples given by McCord involve a

specific type of property -- slaves. Thornton and Willis v. Romeo Lewis

revolved around a labor contract for hire of Negroes to work on the capitol.

Belinda and Charlotte v. Chaires and Berry entailed the question of who was to

inherit two slaves, Belinda and Charlotte, after their original owner's death, and

City of Tallahassee v. James Newbv was another labor contract case.

Parker (1948) examined the functions of the Leon County Court between

1825 and 1833. Much of the county court's time was taken up by administrative

tasks. The court was custodian of lands belonging to the county, in charge of

road building, of establishing patrols when necessary to keep the peace, and of

supporting the poor and infirm. After 1829 the court was also authorized to tax

free persons of color in money or labor and to hold elections. For example in

1827 a tax of $.50 was imposed on all white males between 21 and 45. A $5 tax

was imposed on free colored males and a $3 tax on free colored females

between 18 and 50. Parker does not describe any cases heard by the court

during this period.

Justice of the peace courts were also established in Florida during the

territorial period. The courts were to hear all causes "founded upon any kind of

bill, note, or account when value was $20 or less" (Farris 1941:359). The most

common type of suit brought to justice of the peace courts was for collection of


~










debts (Farris 1941). Criminal cases were handled by circuit courts and superior

courts. Circuit courts had exclusive jurisdiction over probate and estate cases.

During the territorial period and until the end of the Civil War slaves

were disciplined by household tribunals held on the plantations (Richardson

1978). After the war a county criminal court was established to replace these

tribunals. Negroes were allowed to testify only in cases involving other

Negroes and even in these cases the jury was to be all white. The act creating

county criminal courts stipulated that anyone who could not pay a fine would be

sold to any person who paid the delinquent fine and court costs. Florida courts

meted out especially harsh punishments for freemen; when the law called for

fines and imprisonment, the court could substitute whipping or the pillory.

Whipping served the function of public humiliation as well as insuring that the

person would not be taken away from work on the plantation by imprisonment

(Richardson 1978). In general after the war freemen were assessed large fines

for petty offenses, while white violence against Negroes was ignored or lightly

punished. When blacks attempted to file civil cases, the justices of the peace

or the civil judges usually required costs to be paid in advance. Injustice in the

Florida courts was so common that Negroes looked upon these institutions as

instruments of racial oppression (Richardson 1978). The Reconstruction Acts of

1867 overturned the most discriminatory of the so-called Black Codes, but

"Black men continued to receive unfair treatment in many white courts, their

labor system did not change, and even though school revenue was fairly

distributed under the Republicans schools remained segregated" (Richardson

1978:379).

This brief history of courts in Florida reveals parallels between the

development of law in Florida and in the rest of the United States: for







64

example, the common use of courts in the early nineteenth century to recover

money from promissory notes and the function of county courts for administra-

tive as well a judicial tasks. The discussion also highlights features of the

social structure of the South. In the South a particular class of

people -- slaves -- were considered property by the law until after the Civil

War. After the war, Black Codes attempted to replace slavery with a type of a

caste system and to preserve as much of possible of the prewar way of life

(Friedman 1973). In spite of overturning of the Black Codes by the Federal

Reconstruction Acts of 1867 and the Florida Constitution of 1868, continued

discrimination was sanctioned by the behavior of the courts (Richardson 1978).

Development of Small Claims Courts

Like the rest of the development of law and courts, the development of

small claims court needs to be viewed in the context of the nation, the state,

and the county.

United States

Small claims courts appeared relatively late in the development of the

American court system. They were only one of a series of judicial reforms

enacted in the early decades of the twentieth century. Industrialization,

immigration, and urbanization had brought about massive changes in United

States society. In 1850 most of the country's 25 million people were rural

(Cochran 1972). By 1920 the population had grown to 105 million, including 30

million recent immigrants or first generation Americans (Austin 1923).

Differences in wealth and education as well as language and custom generated

controversies that a legal system developed for a homogeneous rural population

could not handle; "what the past left to home and church we are compelled

more and more to commit to the law and to the courts" (Pound 1913:321).








65

Reformers considered the legal system, because of delays, high costs and

fees, to deny justice in two broad categories of cases: those entailing small

amounts of money and those in which one of the parties was poor (Smith 1919).

In these instances, people were forced either to forget their controversies or to

take their cases to justice of the peace courts or to inferior courts. Neither of

these choices was very satisfactory. The justice of the peace system was

disorganized and unsystematic (Clayton 1939) and often presided over by

laymen with little knowledge of the law (Anon. 1918), whereas inferior courts

usually required as much formality in filing and procedure as they did in cases

involving large sums of money (Clayton 1939).

Small claims courts were intended to increase access to courts by

providing "for disposing quickly, inexpensively and justly of the lijgation of the

poor, for the collection of debts in a shifting population, and for the great

volume of small controversies which a busy, crowded population, diversified in

race and language necessarily engenders" (Pound 1913:315). By the "poor,"

early writers were not referring to indigents, but to the vast majority of the

population (Yngvesson and Hennessey 1975), the millions of "humble and plain

people" who could not afford the cost of litigation (Smith 1919).

Small claims courts were loosely modeled on Norwegian neighborhood

courts of conciliation (Anon. 1918), established in 1797 to protect peasants from

lawyers, who were believed to magnify wrongs and to increase hostility between

parties. As a result, litigants left court "out of money and often enemies for

life" (Grenstad 1918:9). Conciliation courts, established in every city, village

and parish, consisted of two members selected from the best men in the

community. All civil cases were required to go before the court of conciliation

before they could be filed in civil court. The hearings were held in private,








66

lawyers were forbidden to appear, and members were sworn to secrecy.

Defaults were curtailed by a very effective rule. If a party failed to appear

before the court of conciliation, the other party could file a suit in regular

court. The defaulting party was then required to pay court costs, regardless of

the eventual outcome of the case. Grenstad (1918) reported that 90 percent of

all cases brought to conciliation were settled.

The founders of small claims courts were also probably influenced by the

concepts of scientific management, the prevailing business philosophy of the

day. Its leading proponent, Frederic W. Taylor, studied the behavior of the

individual as a single unit for analysis abstracted from his social relations both

within and outside the workplace. He believed that all individuals could and

should be taught the one, most efficient way of performing a particular task

(Taylor 1911). The goal of scientific management was to increase an organiza-

tion's productivity by restructuring work in a simplified, rational, and uniform

way (Mouzelis 1967). Economic efficiency was viewed as the ultimate criterion

of a successful work system (Sofer 1972). In a similar way, the founders of

small claims court were primarily concerned with efficiency in terms of both

time and money. In small claims court cases under a certain amount of money

were to be processed quickly, inexpensively, and uniformly.

The first small claims court was established by the Municipal Court of

Cleveland in 1913. Similar courts were established in Minneapolis and Chicago

in 1917, in New York in 1918, in Massachusetts in 1920, and in California and

South Dakota in 1921. Claim limits ranged from $35 in Cleveland, Chicago, and

Massachusetts to $50 in Minneapolis and New York. Filing fees were low,

varying from $.25 to $1.25, and hearings swift, between 5 and 25 days after

filing. Service of summons was by mail, which was far cheaper than traditional










service by sheriff. Hearings occurred quickly. Chicago judges heard a

contested case in an average time of 15 minutes (Anon. 1918), and

Massachusetts judges heard as many as 100 cases per day (Anon. 1920). Chicago

judges were able to process cases rapidly (about 1,000 per month) because many

defendants failed to appear (Anon. 1918).

Corporations, associations, and assignees were not permitted to use New

York's court. They were permitted in the other early small claims courts, but

there is no evidence they dominated the dockets. In all small claims courts,

procedure was simplified in order to decrease delays and to permit individuals

to file a suit without counsel. In New York the rules of practice, procedure,

pleading, and evidence were dispensed with and decisions were made solely on

the basis of substantive law. In contrast to the Norweigian courts of

conciliation, hearings were held in public and witnesses sworn (Alper 1934).

Small claims court forced the judge, accustomed to the adversary system,

into a new role: 'The judge cannot be a mere umpire. He must actively seek

the truth and the law, largely if not wholly unaided. The judge represents both

parties and the law" (Pound 1913: 319). In most courts, judges were instructed

to make an earnest effort at conciliation before entering a judgment. For

example, in Cleveland's court of conciliation, the judge was described as taking

a very active role both in questioning the parties and in urging them to reach a

settlement based on compromise. 'The judge, by question and suggestion, seeks

to elicit the point at issue. While no controversy is permitted to be drawn out

at length, each party is allowed to state his case in his own way. When the

essential facts are brought out, the judge seeks to effect an amicable

adjustment of differences between parties" (Levine 1918: 13). Levine, a small

claims court judge, felt it was important for both parties to leave satisfied. He








68

describes several cases in which the judge went beyond the information

presented in the court in order to resolve a problem. In one case, a landlady

was suing a man for the cost of a new mattress he had burned as a result of

smoking in bed. The man did not deny that he was responsible for the fire, but

he felt the amount of money the lady was requesting was too much. The judge

telephoned a mattress dealer and got a price, substantially lower than that

requested by the landlady, and the man gladly agreed to pay that amount

(Levine 1918).

The clerks, as well as the judges, were said to take an active and

important role in the early courts (Clayton 1939; Alper 1934; Harley 1919;

Pound 1913). By showing parties how to present their cases and by eliminating

unsubstantiated claims in some courts, the clerks saved valuable judicial time.

In several courts, clerks gave direction and advice on points of law both before

and after the trial (Columbia Law Review 1920). In New York courts clerks

issued information to the defendants with the summons, advising them to bring

documents, informing them that the clerk would subpoena witnesses without

cost, and warning them that if they failed to appear, judgment would be

rendered against them (Alper 1934). In Washington, D.C., clerks gave special

assistance to individuals, but not to organizations such as partnerships and

corporations (Clayton 1939).

Attorneys were discouraged in most early small claims courts, but in

contrast to the Norweigian courts, they were prohibited only in California.

Many of the early writers believed that because procedure had been simplified,

lawyers would have nothing to do in small claims court (Committee on Small

Claims and Conciliation Proceedings 1924); others felt that most lawyers would

keep away on their own accord because of low fees (Anon. 1920). The








69

Committee on Small Claims and Conciliation Proceedings felt it would be a

mistake to prohibit attorneys in small claims court because in "some cases

where a party is ignorant, or frightened, or unfamiliar with our language an

attorney might assist the court and facilitate the hearing" (America Bar

Association Journal 1924: 830). The committee suggested legal aid attorneys be

used for this purpose. Meanwhile, in New York the provision to permit counsel

during conciliation was felt to limit the effectiveness of conciliation because of

the fear that if conciliation failed, the attorney might later use information

gained through the conciliation hearing against the other party (Anon. 1918).

Florida

The first small claims courts in Florida were established by legislative act

in 1943, 30 years after the nation's first small claims court was founded in

Cleveland. These local courts were presided over by justices of the peace and

existed in Dade, Volusia, and Hillsborough counties. They were characterized

by low filing fees, service of process by registered mail, and setting of a trial

date not more than 15 days from the date of filing. In 1949 legislation was

passed revising the court in Hillsborough County: the judge was required to be

the senior circuit judge or his designee; the jurisdictional minimum was $100

and the maximum $500. The justice of the peace court had jurisdiction over

cases less than $100.

Chapter 26920 of the 1951 Laws of Florida provided guidelines for the

establishment and operation of a small claims court in each county of the state.

A small claims court was to be established only if a board of county

commissioners determined that there was a local need for such a court. The

claim limit was set at $250 and the judge was appointed by the governor and

required to be a member of the bar. The judge was paid by fees collected by








70

the court as long as the fees did not exceed $7,500 annually. The judge was

authorized to appoint a clerk and assistants who were also paid by fees.

Hearings were to be held not less than five nor more than fifteen days from the

date of service of process. The filing fee was $3.50. The winning party could

receive court costs from the losing party at the discretion of the judge.

Chapter 26920 instructed the small claims court judge to "make an

earnest effort to settle the controversy by conciliation" (Section 12)

immediately prior to the trial of any ease. During the trial the judge was

required to decide the case according to the rules of substantive law. If a

judgment was entered against a party, the judge was to "inquire fully into the

earnings and financial status of such party and shall have full discretionary

power to stay an entry of judgment, and to stay execution ... as shall seem just

under the circumstances and as will assure a definite and steady reduction of

the judgment until it is finally and completely satisfied" (Section 14). In 1952

Leon County passed a law (Chapter 277224, Laws of Leon County) establishing a

small claims court. The justification for this act was apparently Leon County's

growing population, which by this time had reached 50,000. The court

essentially followed the guidelines outlined in Chapter 26920, Laws of Florida

except the claim limit was $200 instead of $250. By 1953, 552 cases were filed

in Leon County small claims court. In contrast, in the same year, only 89 civil

cases were filed in the county court, which also heard 2,411 criminal cases and

129 probate cases (Florida Judicial Council 1956). The relatively high number

of cases filed in the Leon County Small Claims Court indicates that there was a

need for such a court. The justice of the peace court continued to have

concurrent jurisdiction over cases under $100 until it was abolished in 1957.









In 1972 the Florida court system was reorganized as a result of revision of

the Florida Constitution. Constitutional revision, effective on January 1, 1973,

consolidated the fourteen different types of trial courts in Florida into a two-

tier trial court structure composed of circuit and county courts, with small

claims courts placed within county court under the name of summary claims

(Figure 3.1). All judges' salaries were to be paid by the state instead of by

court fees, and judges, except in counties with populations less than 40,000

were required to be members of the Florida Bar. The procedures to be used in

all Florida small claims courts were outlined in the Rules of Summary

Procedure. These rules were designed "to implement simple, speedy, and

inexpensive trials of action at law in county courts" for civil claims not

exceeding $1,500 (Rule 7.010(a)). In many ways the intent and the requirements

of the Rules of Summary Procedure are the same as the requirements of

Chapter 26920 (1951). Once again, the judge was to "make an effort to assist

the parties in settling the controversy by conciliation or compromise" (Rule

7.140(d)). Chapter 26920 specified that the judge could conciliate at any time

before trial while the Rules of Summary Procedure expanded the judge's

conciliation role to anytime before judgment. The Rules of Summary Procedure

also requires the judge to "assist any party not represented by an attorney on:

(1) procedure to be followed (2) presentation of material evidence (3) questions

of law" (Rule 7.140(e)). Judges are not required as they were by Chapter 26920

to inquire into the earnings and financial status of the person against which the

judgment is issued. The Rules of Summary Procedure extended the time

between service and trial from 15 to 60 days.













In 1979 several amendments were made to the Rules of Summary

Procedure. Rights to discovery were modified to prevent a party from

initiating discovery without leave of the court in cases in which the other party

is unrepresented and has not initiated discovery (Rule 7.060); rights to venue

were required to be printed in bold type on the summons (Rule 7.060); service of

process was to be by registered instead of certified mail (Rule 7.070); and

dismissal for failure to prosecute was to be reduced from one year to six

months (Stauber 1980).

Leon County

All small claims courts in Florida are not structured in exactly the same

way. In Leon County in 1981 there are three county judges who serve on small

claims court. From January 1978 to January 1981 an average of 7,000 small

claims have been filed annually in Leon County, compared with an overall

average of 6,000 misdemeanors and 75,000 traffic cases. Each Monday in Leon

County pretrial hearings are held for small claims cases. The three county

judges preside over the pretrial hearings on a weekly rotating basis. During this

time they continue to have other civil and criminal case duties. The judge

hears small claims cases that remain unresolved at a later date. Thus the same

judge follows the case from the pretrial through to the trial stage. In some

counties pretrial hearings are not held; a case is brought before the the judge

only once. Judges in some counties also serve exclusively on small claims court

for a period of months before rotating to another division.

A case formally begins in the Leon County court when the. plaintiff files a

claim against the defendant by filling out a form in the deputy clerks' office.

The case is given a docket number and a date is set for a pretrial hearing no

more than 60 days from the date of filing. The defendant is then sent a copy of










the claim form by registered mail or by sheriff service. The claim form

includes a notice to appear at the courthouse at a specific time and date for a

pretrial hearing. The defendant is also notified that if he fails to appear a

default judgment will be entered against him.

In regular civil proceedings pretrial hearings are frequently called

between opposing attorneys and the judge. These hearings are used to narrow

issues to be tried and to secure stipulations on matters and evidence to be heard

(Black 1979:1069). Pretrial hearings in small claims court are not conducted in

such a thorough or leisurely way. The role of the judge is also minimal. On

each pretrial hearing day in Leon County plaintiffs, defendants, and lawyers all

gather in a large courtroom on the second floor of the courthouse for either the

morning (9:30) or afternoon (2:30) session. Some plaintiffs and defendants are

accompanied by an assortment of friends or relatives. The judge, dressed in his

robe and seated at the bench, calls the cases one at a time after making a few

introductory remarks about the court and its procedures. Cases are processed

very rapidly, as many as 50 to 60 per hour. Many defendants fail to appear

when called, and the judge moves quickly to the next case. If both parties are

present the judge will usually ask them to go into the hallway and try to reach a

settlement. The judge does not take an active role in conciliation. If one of

the parties begins to explain the details of the case, the judge will interrupt and

suggest that the parties talk not to him, but to each other. Likewise, unless a

question is asked, the judge does not give any information relevant to a specific

case. Most small claims cases (approximately 75 percent) are disposed of

during pretrial hearings. The judge instructs the clerk to set a trial date for the

cases that remain unresolved.








75

Small claims trials are each scheduled separately in Leon County and may

be held either in the judge's chambers or in the open courtroom at the

discretion of the judge. Some judges prefer the informality of their offices,

while others prefer the decorum of the courtroom and will schedule their small

claims cases there whenever it is available. The judge is usually the same judge

who presided at the pretrial hearing. Litigants are expected to bring witnesses

and relevant papers to the trial. The degree of formality varies from case to

case depending on whether the parties are represented by attorneys. When

attorneys are not present, each litigant after being sworn in by the judge,

presents his or her side of the case to the judge. After each party presents his

or her case, the other party is allowed to ask questions. The judge may

interrupt at anytime to ask questions and to clarify issues. When attorneys are

present, the trials are generally more formal and the judge more passive. The

judge may make a decision and briefly explain it at the end of the hearing, but

more commonly he will notify the litigants by mail at a later date of his

decision. In contrast to the pretrial hearings, the small claim trials are usually

not rushed. Parties are usually given ample time to present their cases. The

hearings may last from 15 minutes to several days, with the average case taking

about an hour. The judge considers his job finished when he issues his decision.

No effort is made by the court to help the plaintiff collect a judgment from the

defendant although forms for execution and garnishment are available in the

deputy clerk's office. Judges and clerks consider formal collection of a

judgment complex and best left to attorneys. If a litigant is dissatisfied with

the court's decision, he may appeal it from county court to circuit court

although appeals are rare. Circuit court is not as informal as small claims








76

court; litigants are expected to follow the rules, which usually necessitate the

expense of an attorney.

Summary and Conclusions

Settlers were first attracted to Leon County by reports of cheap land

suitable for growing cotton. In the decades before the Civil War, a thriving

plantation economy developed in the county. In 1860 Leon County produced

thousands more bales of cotton than any other county in Florida. Over

three-quarters of the county's population was Negro slaves. After the war, a

tenant farming system replaced the earlier plantation economy. The Negro

population remained high, and most of the county's Negroes became tenant

farmers. Landowners trapped tenants into an everincreasing cycle of debt by

selling them mules, tools, and food on credit. Cotton production gradually

declined after the war, and many of the cotton plantations were converted to

quail plantations by their new, wealthy northern owners. By 1890 large numbers

of blacks began to leave the county for work on the railroads or in phosphate

mines to the south or in search of work in northern cities. Economic growth

resumed in Leon County in the early 1900s with the beginning of growth of

state government and two state universities. However, this growth did not

really gain momentum until after World War II. Both economic and population

growth continued into the 1970s, with Leon County becoming one of the fastest

growing counties in the nation. By 1978 the country's minority population had

decreased to 20 percent. Meanwhile large numbers of young people had moved

to the county, originally attracted by the two state universities. Leon County's

per capital income is relatively high compared with those of neighboring

counties, which remain dependent on agriculture, forestry, or fishing. What

effects have these changes had on small claims court? The next chapter










describes the types of cases brought to the Leon County small claims court and

the types of people who bring them. Do these people come from all segments

of the county's population or do they disproportionately represent certain

groups?

The Leon County court is not only part of the local community, but it is

also part of the American legal tradition. Courts designed to hear cases for

small amounts of money have a long history in America. Justice of the peace

courts, for example, were some of the first courts established in the colonies.

At the time of colonization, the English court system had become complex and

cumbersome. Colonists, reacting to the English system, wanted their courts to

be simple and undifferentiated. Speedy processing of cases was also considered

desirable in certain instances. Massachusetts established special courts for the

speedy processing of cases involving strangers, and southern colonies

established summary courts for slaves. In the colonial courts, most sanctions

were brought against servants, the poor, and slaves. By the nineteenth century

the caseload of American courts had changed. Dockets were dominated by

property and contract cases, and the law began to favor business, productivity,

and growth.

By the end of the century major changes had occurred in American

society: industrialization and immigration had swelled the size of American

cities. The courts began to process more and more cases for small amounts of

money. Meanwhile major businesses had started to avoid the courts, preferring

to settle disputes among themselves. Businesses only used the courts for

routine matters such as debt collection. It was within this setting that small

claims courts developed. These courts, loosely modeled on Norwegian neighbor-

hood courts of conciliation, were to dispose quickly, inexpensively, and justly of








78

cases entailing small amounts of money. The procedures used were to be

simple, and lawyers were to be discouraged. The judges were to take an active

role in assisting the parties. The following chapters describe how small claims

court operates in one county today. Although the Leon County court has some

unique features, it shares many characteristics with small claims courts

throughout the nation. It also reflects some of the goals and some of the

problems inherent in the court since its founding.













CHAPTER 4
LITIGANT CHARACTERISTICS


Access to justice for all citizens is a crucial requirement for a democratic

society. As detailed in the previous chapter, the founding of small claims

courts in the United States was originally intended to help meet this goal. The

court was to be "a friendly forum where the citizen without means, or of

limited means, could present his claim or defense with a minimum of confusion,

delay and expense, and with or without the aid of a lawyer" (Clayton 1939:

205). Critics of small claims court have argued that the court is no longer a

forum where the layman may receive justice quickly and inexpensively, but that

the individual has been forgotten as the court has come to be dominated by

corporations, government agencies, and attorneys (SCCSG 1972; Moulton 1969;

Institute for Consumer Justice 1972; Pagter et al. 1964). According to these

studies, individuals, when they do appear in small claims court, are most likely

to be defendants and most likely are being sued by corporations and government

agencies.

Nader and Todd (1978) offer a general theory of legal evolution that may

help to explain the alleged shift in the function of small claims court from an

institution easily accessible to the layman to one used primarily by businesses

and attorneys. They suggest that access to formal dispute settlement forums

decreases as societies become more complex. In legal institutions within

complex societies there are many barriers to access for the average citizen

including high costs, delays, distance, lack of information, and domination by

professionals (Nader and Todd 1978).









The primary focus of this chapter is the amount of use of one particular

dispute settlement forum by individual citizens and businesses. The

characteristics of individuals and businesses who file claims in Leon County

small claims court will be examined. Whether these individuals and businesses

represent a broad range of types or whether they disproportionately represent

particular segments of the community will be explored. Typical relationships

between litigants will also be described in order to determine whether most

cases filed are in fact complaints "between strangers of unequal power." These

general concerns of access and power will be examined in reference to the

following hypotheses:

1. Organizations (e.g., corporations, proprietorships, partnerships,

government agencies) and service professionals (e.g., physicians, attorneys) will

be more likely to bring cases to the court than private individuals (cf. Black

1976), whereas private individuals will be more likely to have cases filed against

them than organizations.

2. Higher status organizations and persons will be more likely to have

an attorney (cf. Black 1976).

3. Socioeconomic status (as defined by income, education, occupation,

and residence), race, and sex will be related to the frequency with which people

bring cases to Leon County small claims court with higher status persons

bringing more cases than lower status persons (cf. Black 1976). On the other

hand, lower status persons will be more likely than higher status persons to have

cases filed against them.

4. Higher status persons will be less likely to default than lower status

people (Moulton 1969).







81

5. Most of the cases in court will be between strangers (Nader and

Todd 1978).

Types of Cases

In the small claims court literature cases are most commonly categorized

according to type of litigant. Litigants either participate in the court as

representatives of organizations (e.g., businesses, government agencies, service

professionals) or as individuals. Throughout the United States, small claims

courts have been found to have a high proportion of business plaintiffs and a

high proportion of individual defendants (Pagter et al. 1964; Hollingsworth et al.

1973; Moulton 1969; SCCSG 1972; National Institute for Consumer Justice 1972;

Ruhnka et al. 1978; Klein 1971). In order to determine whether a similar

situation occurs in the Leon County court and to test the hypothesis that

organizations and service professionals are more likely to bring cases to court

than individuals a simple random sample (N = 291) of all cases filed in 1979 was

taken.

In the majority (83.4 percent) of cases sampled plaintiffs were businesses,

professionals, or landlords, whereas the majority of defendants (80.7 percent)

were private individuals or tenants (Table 4.1). Businesses and professionals

most commonly bring suit against individuals (Table 4.2). In contrast individuals

were rarely found to sue businesses or professionals. Individuals, in fact, were

more likely to sue other individuals than to sue businesses. Businesses

occasionally filed suit against other businesses, but in interviews local business-

men revealed that they generally prefer to use other, nonjuridical methods to

resolve disputes. Macaulay (1963) has described how businesses typically

resolve disputes through negotiation without recourse to the courts:









TABLE 4.1
TYPES OF LITIGANTS
N 291


Plaintiffs Defendants
Number Percentage Number Percentage


Business 211 72.5 52 17.9
Professionals* 21 7.2 0 0
Landlords 10 3.4 4 1.4
Tenants 4 1.4 10 3.4
Individuals 44 15.1 225 77.2
Government Agency 1 .3 0 0
Total 291 100** 291 100


*Includes medical doctors, veterinarians, and attorneys.

**Because of computer truncation, totals will not always equal exactly 100
percent.


TABLE 4.2
TYPES OF CASES BY LITIGANT



Type Number Percentage
Plaintiff Defendant


Business v. individual 179 61.5
Individual v. business 20 6.9
Business v. business 32 11.0
Individual v. individual 24 8.2
Professional v. individual 21 7.2
Landlord v. tenant 10 3.4
Tenant v. landlord 4 1.4
Government Agency v. individual 1 .3
Total 291 100.0






83

TABLE 4.3
ITEM IN DISPUTE


Percent of
Item No. of Cases Total Cases


Loan from institution 70 24.1
Services* 70 24.1
Goods 34 11.7
Visa and Mastercharge 26 9.0
Damage to Property 20 6.9
Labor/Materials 16 5.5
Overdraft 14 4.8
Rent 10 3.4
Security Deposit 4 1.4
Deficit after Reposession 4 1.4
Personal loan 3 1.1
Other 19 6.6
Missing (not in file) 1 --
Total 291 100.0


*Includes professional services as well as claims for car repair (5) and wages
(3).

**Includes rental deposit, rental fees and disputes between roommates over a
variety of items, such as phone and utility bills, and personal property.







84

lawyers if he wants to stay in business because one must behave
decently you can settle any dispute if you keep the laywers and
accountants out of it. They just don't understand the give and take
of business. (p. 85)

Several types of transactions between businesses and individuals appear

most susceptible to litigation in small claims court. Loans from institutions and

performed services accounted for nearly 50 percent of all claims filed (Table

4.3). Claims for nonpayment of goods and nonpayment of Visa and Master-

charge accounts were also common.

The specific business types participating in small claims court are listed

in Table 4.4, and businesses are categorized by scope in Table 4.5. The

difference between types of business plaintiffs and types of business defendants

is striking. Nearly 50 percent of all business plaintiffs were financial

institutions (banks, collection agencies, credit unions, small loan companies, and

credit corporations). No financial institution was a defendant in the random

small claims court sample cases for 1979. The most common type of business

defendant was in the service category (auto repair shops, hairdressers, physical

therapists, psychologists, and medical doctors). Nearly all defendants were

small, locally owned businesses. Although the percentage of plaintiffs that are

local businesses is also relatively high (59.3 percent), many of these are banks

and thus differ in important ways from other local businesses. Banks may be

local in scope but they tend to be bureaucratic and impersonal, in contrast to

the stereotype of local businesses as friendly and flexible (Caplovitz 1967).

Direct observation of court procedures over a period of a year and a half

revealed that about ten particular businesses and physicians use the court

repeatedly. Two of these businesses are small and locally owned. One is a

plumbing company, the other a rental company. Two collection agencies also










TABLE 4.4
BUSINESS TYPE OF LITIGANTS


Plaintiffs Defendants
Type Number Percentage Number Percentage


Bank 47 20.7
Collection agency 22 9.7
Credit union 18 7.9
Small loan company 15 6.6
Credit corporation 6 2.6
Retail 23 10.1 8 16.0
Hospital 10 4.4 1 2.0
Service* 36 15.8 21 42.0
Plumbing 8 3.5
Construction 5 2.2 7 14.0
Air condition repair 4 1.8 1 2.0
Wholesale 2 .9 3 6.0
Insurance company 8 3.5 4 8.0
Employment agency 3 1.3
Accountants 3 1.3
Engineers and architects 2 .9
Rental company 9 4.0 1 2.0
Real estate company 6 2.6 4 8.0
Total 227 100.0 50 100.0



*Includes auto repair, attorneys, medical doctors, psychologists, physical thera-
pists, and hairdressers.








86

TABLE 4.5
BUSINESS SCOPE OF LITIGANTS


Plaintiffs Defendants
Number Percentage Number Percentage


Local 134 59.3 42 80.8
Regional 21 9.3 0 0
Statewide 31 13.7 2 3.8
National 40 17.7 8 15.4
Total 226 100.0 52 100.0









plumbing company, the other a rental company. Two collection agencies also

regularly file cases in court. One represents a bank, the other represents

universities trying to collect on student loans. Most of the cases filed by these

businesses are for the collection of unpaid bills and are rarely contested. Each

week these businesses and physicians usually bring from five to thirty cases to

court, whereas most businesses only appear occasionally on the docket. The

local businesses and physicians are not usually represented by attorneys unless

the case is contested. The two collection agencies are always represented by

attorneys. According to one of the deputy clerks, the local hospital filed large

numbers of cases in small claims court (approximately 1,000 per year until

1979). Since that year, the hospital has used a collection agency instead of the

court in its efforts to collect unpaid bills.

In all courts studied to date (Pagter et al. 1964; Hollingsworth et al. 1973;

Moulton 1969; SCCSG 1972; National Institute for Consumer Justice 1972;

Ruhnka et al. 1978, Klein 1971), a high proportion of plaintiffs were businesses

and a high proportion of defendants were individuals. A similar situation was

found in the Leon County court. This finding supports the general hypothesis

that organizations and service professionals are more likely to bring cases to

court than individuals.

Attorney Representation

Thirty-six percent of all plaintiffs in the case file sample were repre-

sented by attorneys. In contrast only 7.2 percent of all defendants were

represented (Table 4.6). Analysis of the 549 cases observed during pretrial

hearings shows an even greater discrepancy between plaintiff and defendant

representation. In 47.7 percent of the cases plaintiffs were represented by

attorneys, whereas only 3.1 percent of defendants were represented. The







88


TABLE 4.6
ATTORNEY REPRESENTATION


Plaintiffs Defendants
Number Percentage Number Percentage


Yes 105 36.2 21 7.2
No 179 61.7 267 92.1
Yes, but only at
collection 6 2.1 2 .7
Missing 1 1 -
Total 291 100.0 291 100.0








accurate than the figures from the pretrial observation sample. The case file

sample is a simple random sample of all eases filed in 1979. Pretrials were

selected for observation in an attempt to observe an equal number of hearings

for each of the four judges who served on the court during this time. All judges

set hearings for 9:30 AM. Three of the judges also hear cases in the afternoon

if there are too many cases to schedule in the morning. The researcher

probably inadvertently oversampled cases with attorneys by observing more

cases in the morning than in the afternoon. It appears from a check of the

pretrial dockets that cases with attorneys are more likely to be scheduled in the

morning than in the afternoon.

Recent studies have associated attorney representation primarily with the

theoretically most powerful opponent (i.e., businesses) (SCCSG 1973; Ruhnka et

al. 1978). Several statistical tests were applied to the various samples of case

files to determine whether there is a relationship between attorney

representation and type of litigant in the Leon County small claims court.1 In

the case file sample from the Leon County court, a statistically significant

relationship was not found between type of plaintiff and attorney

representation (Table 4.7). Business plaintiffs were not found to be more likely

to be represented than nonbusiness plaintiffs (i.e., individual). There does,

however, appear to be a relationship between type of defendant and attorney

representation (Table 4.7). A much higher percentage of business defendants

than nonbusiness defendants (24.0 versus 3.8) were represented by attorneys.

The relationship between attorney representation and type of litigant appears

to be modified somewhat by the type of opponent. This modification appears

much stronger for plaintiffs than for defendants as examination of tables 4.8

and 4.9 reveals. Table 4.8 depicts the relationship between type of plaintiff and








90


TABLE 4.7
RELATIONSHIP BETWEEN ATTORNEY
REPRESENTATION AND TYPE OF LITIGANT


Attorney Attorney
Type of Type of
Plaintiff Yes No Defendant Yes No


Business 97 145 Business 14 42

Nonbusiness 14 34 Nonbusiness 9 225
Total 111 179 23 267


Chi square = 1.58462
Significance = .2081
Phi= .08346
Gamma = .23799


Chi square = 24.86996
Significance = .0001
Phi = .30901
Gamma = .78571








91

TABLE 4.8
RELATIONSHIP BETWEEN TYPE OF PLAINTIFF AND
ATTORNEY REPRESENTATION CONTROLLING FOR
TYPE OF DEFENDANT


Defendant Business Defendant Nonbusiness

Attorney Attorney
Type of Type of
Plaintiff Yes No Plaintiff Yes No


Business 15 17 Business 82 128

Nonbusiness 10 14 Nonbusiness 4 20
Total 25 31 86 148


Chi square = .01355
Significance = .9073
Phi = .05185
Gamma = .10526


Chi square = 4.64134
Significance = .0535
Phi = .14084
Gamma = .52416







92

and 4.9 reveals. Table 4.8 depicts the relationship between type of plaintiff and

attorney representation controlling for type of defendant. When the defendant

was a business, business and nonbusiness plaintiffs were almost equally likely to

be represented. In contrast, when the defendant was a nonbusiness, business

plaintiffs were far more likely to be represented than nonbusiness plaintiffs. In

sum, individuals bringing suits against each other appeared to be less likely to

be represented than either businesses bringing suits against individuals or

individuals bringing suits against businesses. A similar, although weaker,

relationship was found for defendants (Table 4.9). Whether the defendant was

represented also appeared to have an effect on attorney representation for the

plaintiff (Table 4.10). Plaintiffs were represented in over half of the cases in

which defendants were represented, but in only approximately one-third of the

cases in which defendants were not represented. Plaintiff representation

appeared to have a similar effect on defendant representation, with defendants

more likely to be represented when plaintiffs were represented (Table 4.10).

The relationship of attorney representation with type and scope of

business was also explored. Again, differences were found between plaintiffs

and defendants. Attorney representation appeared to vary for plaintiffs both by

scope and type of business (Tables 4.11 and 4.12). For defendants, business type

and scope did not appear to have an effect on attorney representation (Tables

4.13 and 4.14). Statewide and national business plaintiffs were more likely to

have attorneys than were local and regional businesses plaintiffs. Collection

agencies, employment agencies, and wholesale companies were found to be

specific types of business plaintiffs most likely to engage attorneys. Perhaps

larger businesses are more likely to be represented than smaller businesses

because they have more money to expend on attorneys.




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