Briefly Speaking with N. Ter Vivos
August 22, 2011 8:06 AM - N. Ter Vivos
To start this series, I thought I’d define a legal term and discuss how it affects the everyday person dealing with a lawsuit. I will also discuss an important part of small claims cases in New York City courts. With apologies to Sesame Street and CTW, today’s word is:
----------------------------------------“res judicata”-----------------------------------------

What the heck does that mean? Well, res judicata is Latin for “the thing has been judged.” When used in a courtroom setting, it effectively means that the subject of the lawsuit currently before the court was already dealt with in a prior lawsuit and the current lawsuit should not proceed. An example of res judicata in operation:

Lucy accuses Anna of breaking her stereo and wants Anna to pay for a new one. Lucy files a lawsuit against Anna in Small Claims Court in Brooklyn. The judge or arbitrator decides that Lucy does not have enough proof to show that Anna broke the stereo. Lucy loses her lawsuit. Unsatisfied, Lucy again files a lawsuit against Anna for the cost of her stereo. This time, Lucy files her lawsuit in Small Claims Court in Manhattan. On the appointed court date, Anna complains to the judge or arbitrator that Lucy already sued her for this very same reason in Brooklyn. Anna tells the judge or arbitrator that the case in Brooklyn was decided and Lucy lost. The judge or arbitrator finds in favor of Anna and dismisses Lucy’s claim. Not because s/he feels that Anna did not break Lucy’s stereo, but because of res judicata. The issue of Lucy’s broken stereo, as it relates to Anna, has already been decided by another court and will not be re-litigated.

Note that above, I said “judge or arbitrator.” In Small Claims Court, either an arbitrator or a judge may hear your claim. Both are legal professionals well versed in the applicable laws, but choosing one or the other will make a difference in your case, particularly your rights after the case is over. If you agree to have your case heard by an arbitrator, you must remember that the arbitrator’s decision cannot be appealed. Both parties must agree to have the case heard by an arbitrator. If you have your case heard by a judge, you can appeal his/her decision. If one or more parties to a small claims lawsuit do not agree to have the case heard by an arbitrator, it will have to be heard by a judge.

So, let’s go back to Lucy and Anna. If an arbitrator adjudicated Lucy’s case, she would be precluded by res judicata from re-litigating the case against Anna. If, however, a judge heard the case, Lucy would not need to file a new case and risk having it dismissed due to res judicata. Instead, she would simply file an appeal.

That being said, why would parties ever agree to have their case heard by an arbitrator instead of a judge? The most common reason arbitrators are chosen is that there are simply more of them available for hearing small claims cases. If, on the appointed court date, the parties insist that a judge hear their case, they may have to wait several days, possibly even weeks, before the case is heard. In some cases, the parties may be so sure of their case that they don’t foresee losing and possibly needing to appeal. Only you (or an attorney you personally consult) can make the decision about seeing an arbitrator or a judge. Be sure to think through your options and be sure you are making an informed decision.

In the next installment, I’ll discuss the standard of proof for civil cases, including small claims cases, and the standard of appeal. Until next time, stay legal!

*note that in criminal proceedings, res judicata is better known as ‘double jeopardy.’
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9 comments
August 22, 2011 9:01 AM - Not_Logged_In
gort from planet x: Excellent post thank you!

May I ask why would some opt for a very public option as in TV court judges, are there any legal differences here as opposed to
the standard judge and arbitrator?
#1
August 22, 2011 9:14 AM - N. Ter Vivos
Great question, Gort. I think that some people go on television to shows like "Judge Judy" for a few reasons.
1. 15 minutes of fame (or shame if Judge Judy decides to call you a moron in front of 10 million viewers!)
2. A free trip to California (hey, in the winter time, why not?)
3. Television shows like Judge Judy tend to have what's called a 'Producer's Fund' or something similarly named. That fund is used to pay the verdicts in the cases. So, that effectively means that when one litigant loses the case and is ordered to pay the other party a certain sum of money, the winner gets paid but the money doesn't actually come out of the loser's pocket.

As to whether that person like Judge Judy is a 'judge' or an 'arbitrator,' in most cases they are considered an arbitrator for litigation purposes. As explained above, this means that the decision, once rendered, is not appealable. The presiding 'judge' must follows the rule of law and standard of proof that would apply in the home state of the litigants. However, the standard of proof for civil cases is largely the same throughout the country. If there are any exceptions, I'm not aware of them. I'll get more into the standard of proof for civil cases like these in my next article.
Edited at August 22, 2011 9:16 AM
#2
August 22, 2011 9:16 AM - Arkady
Having seen so many miscarriages of justice, I certainly would never opt to go through a process that disallowed the possibility of appeal. But thanks for the really lucid explanation.
#3
August 22, 2011 9:23 AM - N. Ter Vivos
Arkady, I think the trade-off for lack of appeal opportunites is faster access to the courts. As stated above, waiting for an actual judge will cost the litigants precious time, and in some cases, that may not be worth it to them. Particularly with the budget cutbacks New York Courts are experiencing, the wait to get in front of a judge for a small claims case can be ridiculously long. In some counties, small claims cases are only heard on one night a week, others being cut back to one day a month! There was a recent New York Times article on the subject.
#4
August 22, 2011 9:51 AM - Not_Logged_In
gort from planet x: I agree Arkady I wouldn't want to take that chance either unless I was proof positive I could win my case. How rare that would be.

Being publicly chastised is not my thing so I've always wondered what the benefits might be! LOL
It is interesting about the "fund" and the plaintiff receiving their dues which is good but I would still feel
a bit cheated as if the person I was suing got off scott free not having to reach in their own pocket to pay for the damages done.

Thank you NTV for your reply. Legal issues/system are very complex and I look forward to your other posts
helping to demystify the topic for those of us not in the know.
Edited at August 22, 2011 9:51 AM
#5
August 22, 2011 10:02 AM - MontroseMorris
Excellent first article, NTV. I'm looking forward to more. This is really interesting, and very well written. Thanks!
Edited at August 22, 2011 10:02 AM
#6
August 22, 2011 10:45 AM - Deleted
Cool article. Lee em coming !!
#7
August 22, 2011 1:16 PM - minard lafever
Very nicely done.
I would guess that another reason one may wish to opt for an arbitrator is just to get the thing over with. If you win, the other party can't appeal and if not you pay and go on to the next challenge as opposed to endless appeals, I could see the beauty in that.

#8
August 22, 2011 8:49 PM - N. Ter Vivos
Thank you all for your gracious compliments. I hope to keep you all riveted in the coming articles. And yes, Anna and Lucy are still having problems with each other!
#9