RAB Performance Recoveries v. Swanson, No. S2171-09 CnSc (Toor, J., Oct. 20, 2010) [The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] V ERMONT S UPERIOR C OURT C HITTENDEN U NIT C IVIL D IVISION │ 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 t he undersigned on May 4, 2010. Plaintiff’s counsel appeared without any witn esses. Defendant did not appear and no counsel appeared for him. Plaintiff requested th at the court enter a default judgment for plaintiff at the time of trial based upon Defen dant’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 consid ered the issues, the court issued an order to show cause why the case should not be dism issed for Plaintiff’s failure to appear

with witnesses at the time of trial. The court’s an alysis appears in that order, issued May 12, 2010. Familiarity with that order is presumed h ere. 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 t o live witnesses, is sufficient to establish Plaintiff’s case. Therefore, Plaintiff ar gues, 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.2 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). T his is what Plaintiff relies upon for its argument that its case can be proved at trial by do cuments 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 base d solely upon the documents presented by Plaintiff, without any witness. However, for sev eral reasons the court rejects such an argument. First, the Small Claims rules themselves state as f ollows: “All witnesses will testify under oath and will be examined by the judg e with the objective of laying out the

evidence ...” Id . 6(a). It is clearly contemplated that witnesses w ill appear. Second, the Small Claims Rules state: “When matters arise that are not covered by these rules, the court will proceed by analogy t o 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 inexpe nsive disposition of the claim.” V.R.S.C.P. 13. The analogous rule here is Rule 43 o f the Rules of Civil Procedure. It states that “[i]n all trials the testimony of witne sses shall be taken orally in open court, unless otherwise provided by these rules, the Vermo nt 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, i t could be argued that Rule 43 does not apply in S mall Claims cases. Rule 1 of the Small Claims Rules stat es that those rules “are the only procedural rules governing such actions except to the extent that ot her rules are expressly adopted by reference.” V.R. S.C.R.3

witness testifying in a case must be present in cou rt 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 tes timony 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 be cause the credibility of the witness can be evaluated, and the factual issues narrowed by cr oss-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 proffe red: 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 o ffered no live testimony. The Supreme Court reversed the award of fees, stating that it w as not “proper to use the affidavit in place of live testimony on contested evidentiary ma tters.” 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, whic h 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 t hat judges must decide whether there is a gap in the Sm all Claims Rules that needs to be filled in by anal ogy to the Civil Rules. In this case, either the requireme nt in Small Claims Rule 6(a) that all witnesses mus t testify under oath and be questioned by the judge answers t he question, or reference to Rule 43 of the Civil R ules is necessary to clarify it. In either case, Rule 1 certainly does not bar reference to V.R.C.P. 43.4

not merely a rule of evidence, it is a bedrock of o ur legal system. “It is only when the witnesses are present and subject to cross-examinat ion 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 o f 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 affidavi t . . .” Adickes v. S. H. Kress & Co. , 398 U.S. 144, 176 (1970) (Black, J., concurring)(emphas is 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 reas ons 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 Stat es of America is entitled to question the witnesses against him, and the fact that she is sue d in Small Claims Court does not diminish this fundamental right. As the United Stat es Supreme Court has said:

The perception that confrontation is essential to f airness has persisted over the centuries because there is much truth to it. A witness may feel quite differently when he ha s to repeat his story looking at the man whom he will ha rm greatly by distorting or mistaking the facts. He ca n 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 convinc ingly.5

Coy v. Iowa , 487 U.S. 1012, 1019 (1988)(internal quotations om itted). “The integrity of the factfinding process at trial is undermined wher e 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 witn esses 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 examina tion is the principal means by which the believability of a witness and t he truth of his testimony are tested.” Mayes v. Sowders , 621 F.2d 850, 855 (6 th Cir. 1980). Although “the right to confront and cross-examine h is 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[.]” Duran t v. Stahlin , 135 N.W. 2d 392, 649 (Mich. 1965) (Souris, J., concurring). “A witness m ay 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 crossexamination”); 5 Wigmore On Evidence, § 1367, p. 32 (Chadbourn rev. 1974), quoted

in Tills , 384 N.W.2d at 706 (“For two centuries past, the p olicy 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 d oubt 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, i s the great and permanent contribution of the Anglo-American system of law to improved met hods of trial procedure”).6 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 nu merous matters that are admissible in criminal and civil cases wit hout 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 pro ceedings. The small claims process is designed for the “simpl e, informal and inexpensive” resolution of disputes. V.R.S.C.P. 1. Certainly, sm all claims trials would be simpler and

faster without witnesses. That would also be true i f we dispensed with trials altogether and ruled based solely on how well the complaint w as written, or on what the judge thought of the lawyer’s outfit, or if we made the p arties 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 o f law. Nor would a trial without

witnesses.

Order This case is dismissed with prejudice for plainti ff’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