Declaration Attached to Small Claims Suit Written by Lawyer-Legal?

[tumbao]

california. I have been sued in small claims court. I received in the mail the plaintiff's application to sue (Form SC-100), stamped by the court with a court date.

At the end of the application form there is an attached paper called Declaration, in which the whole legal case of the plaintiff is presented, signed and dated by the plaintiff.

However, it is absolutely clear that that declaration was not written by the plaintiff, but by a lawyer. It is not just that I think that, anyone reading that would know it with certainty. Furthermore, I confronted a lawyer who I know did the application for the plaintiff, and she admitted that she wrote it. So, although her name appears nowhere on the application or that declaration, I am sure if the court asked the lawyer or the plaintiff, either would admit that the lawyer wrote that declaration. And as said, it is totally obvious looking at it, undeniable.

The lawyer insisted to me that that is totally legit. However, it does not sound right to me. Small claims court is not supposed to involve arguments by lawyers. Sure, a lawyer could give advice to the plaintiff or defendant. But this declaration is the whole legal case presented to the judge by a lawyer (although the lawyer's name is not on it). To me, how is that different from the lawyer arguing in court, which is not allowed in small claims court? That lawyer is arguing to the judge, presenting her whole case, but in writing rather than in person. To me, that seems in conflict with the idea of small claims court, which allows no lawyers arguing to the judge.

Is there a way I could ask that that declaration be removed from the case application, in advance, before the case goes to the judge? (so that the judge does not read it?) If yes, how do I do that?

Furthermore, I saw nothing in the document that I received, regarding whether the defendant can also write such a declaration summing up his whole case, also for the judge to see in advance? It would only seem fair that I could do that too, but I did not see any directions for doing that? (Although it still would not be fair, as mine would not be written by a lawyer, as the plaintiff's declaration clearly and undeniably was.)

I would appreciate any informed input on these questions. Thank you.

 

[Taxing Matters]

Is there a way I could ask that that declaration be removed from the case application, in advance, before the case goes to the judge? (so that the judge does not read it?) If yes, how do I do that?

Understand that the affidavit attached to the answer is not evidence and the judge does not use that in making his/her decision on the case. The judge instead only takes into account what is introduced at the trial. That said, if you wish you may move to strike the affidavit and see if the court will grant that. It is the judge who makes that decision, however. So the judge will end up reading it in order to make the decision on the motion. But again, the judge only takes into account what is presented at trial in reaching his/her decision on the case. Each county in California has a small claims advisor that can help you if you need assistance with what to do.

 

[FlyingRon]

And to answer the underlying question, while lawyers may not appear on behalf of individuals in small claims, there is no prohibition that a litigant can not use the assistance of counsel in preparing their case. Arguing that "a lawyer wrote this" isn't grounds for anything.

 

[Taxing Matters]

And to answer the underlying question, while lawyers may not appear on behalf of individuals in small claims, there is no prohibition that a litigant can not use the assistance of counsel in preparing their case. Arguing that "a lawyer wrote this" isn't grounds for anything.

However, it appears that lawyer can't actually prepare the pleadings in the case. The rule states that “(a) Except as permitted by this section, no attorney may take part in the conduct or defense of a small claims action.” Cal. Civ. Proc. Code § 116.530(a). There is an exception allowing the attorney to “[provide] advice to a party to a small claims action, either before or after the commencement of the action.” § 116.530(c)(1). Giving advice is not the same thing as actually drafting documents for the litigant to use in the case.

 

[Mass_Shyster]

California Rules of Court 3.35 and 3.37 permit an attorney to draft pleadings in a civil matter as part of Limited-Scope Representation.

 

[Taxing Matters]

California Rules of Court 3.35 and 3.37 permit an attorney to draft pleadings in a civil matter as part of Limited-Scope Representation.

They do permit limited representation in other courts. That rule does not, however, override the specific statutory limitations for representation that apply for small claims court.

 

[tumbao]

Thank you for everyone's input. I see different opinions here.

Taxing matters, so are you of the opinion that the declaration attached to the small claims court suit application by the plaintiff, that is very clearly and undeniably written by an attorney (again, i am sure both the plaintiff and that attorney would admit that if asked by the court), arguing the plaintiff's whole case to the SCC judge, is not legal, due to being an argument to a SCC judge by an attorney (although in written form)?

If that is the case, what procedure would I follow to ask that that declaration be removed from the plaintiff's application? Can that be done, and that declaratoin removed, before the case comes to trial?

Thanks again for the input and info.

 

[Zigner]

Thank you for everyone's input. I see different opinions here.

Taxing matters, so are you of the opinion that the declaration attached to the small claims court suit application by the plaintiff, that is very clearly and undeniably written by an attorney (again, i am sure both the plaintiff and that attorney would admit that if asked by the court), arguing the plaintiff's whole case to the SCC judge, is not legal, due to being an argument to a SCC judge by an attorney (although in written form)?

If that is the case, what procedure would I follow to ask that that declaration be removed from the plaintiff's application? Can that be done, and that declaratoin removed, before the case comes to trial?

Thanks again for the input and info.

To what end? What's going to matter is the testimony (and other evidence) in court, not the initial document(s).

 

[tumbao]

To what end? What's going to matter is the testimony (and other evidence) in court, not the initial document(s).

I don't know to what end? Are you saying the judge won't even read the initial declaration of the plaintiff?

 

[Zigner]

I don't know to what end? Are you saying the judge won't even read the initial declaration of the plaintiff?

Why read a document when he's got the storyteller right in front of him/her?

 

[tumbao]

Why read a document when he's got the storyteller right in front of him/her?

Because the document, written by a lawyer, makes the plaintiff's case much better than the plaintiff could verbally.

 

[Zigner]

Because the document, written by a lawyer, makes the plaintiff's case much better than the plaintiff could verbally.

The document isn't the case, nor is it evidence.