One of our Associate Members, Clint Diesto from the Philippines, has written an article on the importance of Paralegals in small claims cases. The fundamental question is, when should Paralegals appear in order to assist a litigant?
Imagine yourself at a collection suit hearing in a tribunal or court where you have to appear before a Judge. Although you have been informed that this is an informal hearing and you have to raise a point of inquiry before the Judge, you cannot express it confidently because you are afraid you will be misquoted by the court.
Another instance would be as follows: You are supposed to present your bargaining terms with the other party, yet you cannot formally present it even with the court’s assistance, because you cannot lay down “legal and formal” terms and conditions.
Or consider this typical worst-case scenario: Suppose that you are able to file a small claims case before a court or tribunal, and during the court hearing the Judge has gone over the summons and declared that the defendants were unduly served. What would you do about these technicalities? The worst case would be that the court would eventually dismiss the case because it has no jurisdiction over the defendants (since they did not properly receive the summons). If I am just an ordinary party litigant with no legal practice experience or background, I cannot stand in a court empty-handed.
Given these scenarios in a small claims court, should a Paralegal appear and assist a litigant?
Several questions go through the minds of legal luminaries when considering how Paralegals should be part of the picture in a Small Claims Court hearing. Some would even say that their presence should not be limited to small claims cases but should also be welcome on other cases, such as labour disputes, Petty Criminal Cases and Civil Cases (personal injury, debt recovery, etc.).
I want to simplify the matter and explain why Paralegals should assist party litigants, giving scenarios from countries all around the world that have adopted small claims courts:
- Canada – The Law Society of Upper Canada has formally recognised Paralegals, allowing them to represent and appear on behalf of party litigants before small claims courts.
- United States – Each state has adopted its own small claims courts, and corporations can be represented by Paralegals (non-lawyers). Appeals for decisions made by the court can be done under the Small Claims Rule. Some members of the National Association of Legal Assistants (NALA) have represented party litigants in small claims cases.
- United Kingdom – Professional bodies such as the National Association of Licensed Paralegals and the Institute of Paralegals provide for the recognition of Paralegals to assist party litigants before any small claims court.
- Hong Kong, Australia, EU countries, Philippines and Singapore – Small claims courts have been adopted, with similar rules to those used by the US and Canada, providing that Paralegals shall be permitted by the court to represent litigants. Corporations involved in such cases may be represented by non-lawyers, most often Paralegals which they have employed. Only the Philippines small claims courts have implemented a rule providing that no decision shall be appealed; decisions are final and executory.
In the given scenarios, only the Judicial Department of Canada fully recognises the importance of Paralegals and regulates their practice. Still, the US and the UK have fully recognised the Paralegal profession through the establishment of professional associations duly acknowledged by those governments. In other countries, Paralegals are neither recognised nor regulated at all.
But even if it is legal in that particular country, should a Paralegal represent a litigant in a small claims case? The point is clear – let the rules of each country’s small claims courts be the deciding factor regarding whether Paralegals shall represent a party litigant in a small claims court, provided that party litigants submit an Engagement Agreement before the court. This agreement states that the litigants have consented to and availed themselves of the services of a Paralegal as covered only under the country’s small claims rule, with the necessary service fees to be received by said Paralegal. The only hesitation here is that in some countries (as in my country, the Philippines), non-lawyers are prohibited from receiving legal fees from litigants. Should this issue be resolved, Paralegals must receive compensation for their services for small claims court cases, known as “service fees,” as stated in the Engagement Agreement.
Lastly, I would like to express my views on this matter. Paralegals play a vital role in small claims cases, considering that legal proceedings are now getting more and more common. I hope that judicial bodies around the world come to realise that Paralegals are an important part of the legal profession. It is my opinion that such advocacy for the recognition of the Paralegal profession should be a reality worldwide.
Clint Diesto AILS, R.Inst.Pa, AB Pol Sci