What topics do you want addressed by Judge Latwin? Tell us.
By Joe Latwin
In Holding Court: Paving the Way to Justice [May 16, 2023], I described a small claims trial where the claim was that the property didn’t collect water before the defendant repaved the driveway, but afterwards, the PVC pipe under the driveway was found to have collapsed and been blocked by rocks. Among the things I expected to come into play are the burden of proof. We now have a decision. Let’s see how good my crystal ball was.
In the written decision, Judge Livingston described the claim and the evidence. Critical to her decision was the concession the plaintiff made that she had no direct proof that the defendant had caused the damage to the pipe. Instead, it was plaintiff’s opinion that defendant caused the damage to the pipe because there was no problem before the defendant did the work and the damage was discovered after the defendant performed the work. Judge Livingston wrote “This is speculation, not proof …to the extent small claims litigants believe that their claims are self-evident… the judge may not fill in evidentiary gaps by unwarranted speculation…” She continued, “Certainly, the cause of an underground PVC pipe of unknown age breaking was not a matter of common knowledge but one which required an expert opinion. However, plaintiff did not produce an expert to testify as to the causation. Accordingly, the plaintiff has not proven liability on the part of the defendant.”
There was a 2016 appellate case involving a pipe. In that case the court said “plaintiff failed to prove that the damage to the sewer pipe was caused by any work that had been performed by defendant. Even in a small claims action, a plaintiff is required to produce an expert to prove causation when it is not apparent to a non-expert observer. …Plaintiff presented no expert testimony in support of his claim that the work that had been performed by defendant contributed to his sewer pipe damage.”
The case was dismissed. Apparently, my prospects as a soothsayer are bright. I can accurately “soothe”. (Just not on horses or the market)
Lessons learned: As I said in my February 7 article, Holding Court: Civil Cases in Rye – Small Claims and Commercial Claims, no attorney is required but it is frequently penny wise and pound foolish to forego attorney representation. As a wise (modest, and good looking) now-retired jurist wrote “(Small and) Commercial Claims are often a snare for the unwary Pro se litigant. Perhaps beguiled by televised simulated court programming, the public may be misled into the belief that in a 22-minute segment, if you tell your story and it seems unfair, then you will prevail regardless of the quantity or quality of the evidence and proof.
Here, unfamiliarity with what the law required to sustain the burden of proof and the need for witnesses or sufficient evidence in admissible form to prove the case creates false expectations that reduce the chances of a settlement and may result in falling short of the desired outcome. If you don’t know what you need to prove and what evidence is needed to prove it, you are working blindfolded and as likely to have success hitting your target as would a blindfolded archer. By avoiding the expense of an attorney with knowledge of the law and how to prove the required facts, the Pro Se small or commercial claimant risks losing their claim. This is unfortunate.”
To paraphrase George Harrison: if you don’t know where you’re going, any road will take you there but not in Court!