RAB Performance Recoveries v. Swanson, No. S2171-09 CnSc (Toor, J., Oct. 20, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                               VERMONT SUPERIOR COURT
                                                  CHITTENDEN UNIT
                                                   CIVIL DIVISION

                                                                    │
RAB PERFORMANCE RECOVERIES                                          │
 Plaintiff                                                          │
                                                                    │
 v.                                                                 │           Docket No. S2171-09 CnSc
                                                                    │
MELISSA L. SWANSON                                                  │
 Defendant                                                          │
                                                                    │

                               RULING ON ORAL MOTION FOR DEFAULT

           This small claims case was set for hearing before the undersigned on May 4,

2010. Plaintiff’s counsel appeared without any witnesses. Defendant did not appear and

no counsel appeared for him. Plaintiff requested that the court enter a default judgment

for plaintiff at the time of trial based upon Defendant’s failure to appear, saying that is

the usual practice in Small Claims Court. The court indicated that it would consider the

request and issue a written decision. Having considered the issues, the court issued an

order to show cause why the case should not be dismissed for Plaintiff’s failure to appear

with witnesses at the time of trial. The court’s analysis appears in that order, issued May

12, 2010. Familiarity with that order is presumed here.

           In response to the show cause order, Plaintiff has submitted a two page

memorandum. Plaintiff argues that this was a Small Claims Court case, in which the

Rules of Evidence do not apply when the trial is by court rather than jury. Thus, it

concludes, documentary evidence alone, as opposed to live witnesses, is sufficient to

establish Plaintiff’s case. Therefore, Plaintiff argues, even though only counsel appeared

for trial and no witness was present, Plaintiff was ready for trial and could have put on its

case without any witnesses.
                                                Analysis

        The Small Claims rules state that when the trial is by court, “evidence is

admissible if it is of a type commonly relied upon by reasonably prudent persons in the

conduct of their affairs, and the Vermont Rules of Evidence are inapplicable except for

the rules respecting privilege.” V.R.S.C.P. 6(b). This is what Plaintiff relies upon for its

argument that its case can be proved at trial by documents without a witness, and that it

was therefore ready to go to trial when scheduled.

        To accept this argument, the court would also have to accept that if Defendant has

appeared for trial, trial could have proceeded based solely upon the documents presented

by Plaintiff, without any witness. However, for several reasons the court rejects such an

argument.

        First, the Small Claims rules themselves state as follows: “All witnesses will

testify under oath and will be examined by the judge with the objective of laying out the

evidence …” Id. 6(a). It is clearly contemplated that witnesses will appear.

        Second, the Small Claims Rules state: “When matters arise that are not covered

by these rules, the court will proceed by analogy to any applicable provision of the

Vermont Rules of Civil Procedure that is consistent with these rules and with the

objective of securing a simple, informal and inexpensive disposition of the claim.”

V.R.S.C.P. 13. The analogous rule here is Rule 43 of the Rules of Civil Procedure. It

states that “[i]n all trials the testimony of witnesses shall be taken orally in open court,

unless otherwise provided by these rules, the Vermont Rules of Evidence, or other rules

adopted by the Supreme Court.” V.R.C.P. 43(a).1 “‘[O]rally in open court’ means that a


1
 Although Plaintiff has not raised this argument, it could be argued that Rule 43 does not apply in Small
Claims cases. Rule 1 of the Small Claims Rules states that those rules “are the only procedural rules
governing such actions except to the extent that other rules are expressly adopted by reference.” V.R.S.C.R.

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witness testifying in a case must be present in court so that the trier of fact may observe

the demeanor of the witness.” Simpson v. Rood, 2003 VT 39, ¶ 8, 175 Vt. 546 (quotation

omitted). “In terms of the presentation of oral testimony in civil cases, Rule 43(a) leaves

nothing to the court’s discretion in the absence of agreement by the parties to allow

testimony in a different form.” Id. ¶ 9. “Historical experience has taught us that

testimonial evidence has the highest reliability because the credibility of the witness can

be evaluated, and the factual issues narrowed by cross-examination.” Id. ¶ 12 (quotation

omitted). Thus, in Simpson, the court held that allowing telephone testimony without the

other side’s consent mandated reversal, because of the importance of having the witness

present in person in the courtroom.

         Here, even less than telephone testimony was proffered: merely an affidavit. The

Vermont Supreme Court has expressly rejected such a proffer as adequate. In Vermont

National Bank v. King, 135 Vt. 551 (1977), a hearing was held regarding attorney’s fees.

The party seeking fees submitted an affidavit but offered no live testimony. The Supreme

Court reversed the award of fees, stating that it was not “proper to use the affidavit in

place of live testimony on contested evidentiary matters.” Id. at 552. The Court noted that

the rules permit affidavits “for aspects of motion practice, or to supplement pleadings,

“but not for use at trial as a substitute for live testimony. Id.

         Even if Rule 43 were not applicable here, the court would nonetheless conclude

that an affidavit is an inadequate and unacceptable substitute for live testimony. The very

idea of a trial in this country is a proceeding in which witnesses appear to testify. This is

1. This is somewhat inconsistent with Rule 13, which directs courts to proceed by analogy to the Civil
Rules. The court concludes that to give meaning to both rules, the only reasonable interpretation is that
judges must decide whether there is a gap in the Small Claims Rules that needs to be filled in by analogy to
the Civil Rules. In this case, either the requirement in Small Claims Rule 6(a) that all witnesses must testify
under oath and be questioned by the judge answers the question, or reference to Rule 43 of the Civil Rules
is necessary to clarify it. In either case, Rule 1 certainly does not bar reference to V.R.C.P. 43.

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not merely a rule of evidence, it is a bedrock of our legal system. “It is only when the

witnesses are present and subject to cross-examination that their credibility and the

weight to be given their testimony can be appraised. Trial by affidavit is no substitute for

trial by jury which so long has been the hallmark of even handed justice.” Poller v.

Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962) (internal quotation

omitted; emphasis added). “The right to confront, cross-examine and impeach adverse

witnesses is one of the most fundamental rights sought to be preserved by the Seventh

Amendment provision for jury trials in civil cases. The advantages of trial before a live

jury with live witnesses, and all the possibilities of considering the human factors, should

not be eliminated by substituting trial by affidavit . . .” Adickes v. S. H. Kress & Co., 398

U.S. 144, 176 (1970) (Black, J., concurring)(emphasis added). See also, State v.

Cameron, 168 Vt. 421,426 (1998)(citing “the belief that it is more difficult to lie about a

person in the person’s presence” as one of the reasons behind the right to confront

witnesses in criminal cases).

       Although this case relates to a bench trial rather than a jury trial, the same

principles hold true. A litigant in the United States of America is entitled to question the

witnesses against him, and the fact that she is sued in Small Claims Court does not

diminish this fundamental right. As the United States Supreme Court has said:

               The perception that confrontation is essential to fairness has
               persisted over the centuries because there is much truth to
               it. A witness may feel quite differently when he has to
               repeat his story looking at the man whom he will harm
               greatly by distorting or mistaking the facts. He can now
               understand what sort of human being that man is. It is
               always more difficult to tell a lie about a person “to his
               face” than “behind his back.” In the former context, even if
               the lie is told, it will often be told less convincingly.




                                             4
Coy v. Iowa, 487 U.S. 1012, 1019 (1988)(internal quotations omitted). “The integrity of

the factfinding process at trial is undermined where the parties do not have the

opportunity to confront each other or the witnesses, where the finder of fact does not have

the opportunity to observe the parties and the witnesses and where the opposing party

cannot effectively cross-examine the other party or the witnesses.” Bonamarte v.

Bonamarte, 866 P. 2d 1132, 1135 (Mont. 1994). “Cross examination is the principal

means by which the believability of a witness and the truth of his testimony are tested.”

Mayes v. Sowders, 621 F.2d 850, 855 (6th Cir. 1980).

        Although “the right to confront and cross-examine his accusers” is not a

constitutional right in civil cases, “nonetheless . . . such right is implicit in our historical

concepts of due process and of fair trial[.]” Durant v. Stahlin, 135 N.W. 2d 392, 649

(Mich. 1965) (Souris, J., concurring). “A witness may convince all who hear him testify

that he is disingenuous and untruthful, and yet his testimony, when read, may convey a

most favorable impression.” Untermyer v. Freund, 37 F. 342, 343 (2d Cir. 1889),

abrogated on other grounds, Heyman v. Commerce and Industry Ins. Co., 524 F. 2d

1317, 1319 (2d Cir. 1975). See also, Town of Geneva v. Tills, 384 N.W.2d 701, 706

(Wis. 1986) (referring to the “common law right to have a meaningful cross-

examination”); 5 Wigmore On Evidence, § 1367, p. 32 (Chadbourn rev. 1974), quoted

in Tills, 384 N.W.2d at 706 (“For two centuries past, the policy of the Anglo-American

system of evidence has been to regard the necessity of testing by cross-examination as a

vital feature of the law. . . “[I]t is beyond any doubt the greatest legal engine ever

invented for the discovery of truth. . . If we omit political considerations of broader

range, then cross-examination, not trial by jury, is the great and permanent contribution

of the Anglo-American system of law to improved methods of trial procedure”).

                                               5
       It is true that even in criminal cases the right to confront witnesses can be

overridden by other policy considerations. See, e.g., State v. Lipka, 174 Vt. 377, 383

(2002) (addressing restrictions on the testimony of a child in a sexual abuse trial);

Maryland v. Craig, 497 U.S. 836 (1990)(same). Likewise, there are numerous matters

that are admissible in criminal and civil cases without a live witness because, for

example, they come within express exceptions to the hearsay rule. However, no

overriding policy considerations justify dispensing altogether with live testimony in favor

of written affidavits in all Small Claims Court proceedings.

       The small claims process is designed for the “simple, informal and inexpensive”

resolution of disputes. V.R.S.C.P. 1. Certainly, small claims trials would be simpler and

faster without witnesses. That would also be true if we dispensed with trials altogether

and ruled based solely on how well the complaint was written, or on what the judge

thought of the lawyer’s outfit, or if we made the parties play “rock/scissor/paper” to

decide their dispute. None of these, however, would provide the reasoned and thoughtful

justice that is the overriding goal of our system of law. Nor would a trial without

witnesses.

                                           Order

       This case is dismissed with prejudice for plaintiff’s failure to appear with
witnesses at the time of trial.

Dated at Burlington this 20th day of October, 2010.

                                              _____________________________
                                              Helen M. Toor
                                              Superior Court Judge




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