Mediation - the cure for pandemic induced court delay in civil disputes.

 Mediation is growing in popularity among Maryland  trial lawyers. Civil matters are particularly well-suited to mediation sessions, where settlement positions can be traded, discussed and finalized with the help of a neutral mediator. 

The case for mediation in civil matters has been made stronger by the current pandemic, and resulting delays in the Maryland trial courts. By way of example, this Firm concluded a four-day trial in a circuit court. The last argument was made in February, 2020, shortly before the successive shut downs and periods of restricted access.

The case was tried after almost two years of pretrial discovery and motions practice. The parties to the case were relieved when the trial concluded, anticipating a court decision that would permit them to move beyond the dispute, and to more productive business endeavors. 

That was twenty-two months ago. We continue to await a decision.

The disruption of normal court activities has been so complete that this case, and many others, remain in judicial limbo. No decision, for the plaintiff or defendant, means that the case is effectively on hold. And since neither party has won or lost, there are no appeals to be lodged, briefed or argued.

In a separate case, this Firm recently obtained judgment for our client in an uncontested case. That case was filed thirty-four months ago

I received a civil demand letter. What do I do?

“I made a mistake.   I was caught trying to shoplift.  I gave the merchandise back, and was released.  I thought this was all behind me, until I received a letter in the mail demanding payment.  What is a civil demand letter, and what should I do about it?”

What is a civil demand letter

The letter will identify you, and accuse you of theft.  The letter will demand a return of the merchandise (if not already returned), payment equal to the value of the merchandise (if the merchandise was destroyed), payment for the lost time/wage of the employee(s) who apprehended you, and payment of a civil penalty equal to twice (2x) the value of the stolen items.  See, the Maryland Courts & Judicial Article of the Maryland Code § 3-1302.

What happens if I pay the amount demanded?

If you pay the demand, the store cannot make any further civil demands against you relating to the same theft.  See, Md. Cts. & Jud. Proc. Code § 3-1304.  However, that payment can be used against you in subsequent criminal proceedings to demonstrate your guilt.  See, Maryland Rule 5-804(b)(3).  Payment of the civil demand does not preclude criminal prosecution.  See, Md. Cts. & Jud. Proc. § 3-1306(b).

What happens if I ignore the demand letter?

If you ignore the demand, the store may sue you, civilly.  They must file a small claim in district court, and serve you with a summons.  If they are successful, they may recover attorney’s fees and court costs, regardless of your ability to pay.  See, Md. Cts. & Jud. Proc. § 3-1305(b).  Generally, however, the time and effort required to prosecute a small claim deters such lawsuits.

What can happen, regardless of my decision?

Whether you pay the civil demand or not, the store can swear-out a criminal complaint, and you may be charged with a crime.  Maryland’s consolidated theft statute establishes maximum penalties based on the value of the items stolen:

Value	Type	Max Penalty
< $100	Misdemeanor	90 days / $500
< $1,000	Misdemeanor	18 months / $500
$1,000 - $9,999	Felony	10 years / $10,000
$10,000 - $99,999	Felony	15 years / $15,000
$100,000+	Felony	25 years / $25,000

See, Maryland Criminal Law Article § 7-104.

If you are charged with an incarcerable crime, you are entitled to a lawyer, regardless of your income.  Hire a private attorney, or apply for representation through the Office of the Public Defender.

The Debt Collection system is not broken, it just needs lawyerly attention.

A July 24th article in the Baltimore Sun  decries the glut of debt collection cases in Maryland’s District Court, where far too many claims are passed through the system with little scrutiny. Judge Clyburn is quoted as saying that 200,000 judgments by default are granted each year, and that two-thirds of that sum involve debt collection. The actual statistics for the District Court are available, here, , but they are not broken down so precisely that defaults granted in certain types of civil cases can be identified.


It is no surprise to active bar members that many, many cases result in default judgment simply because a defendant failed to plead or appear at the affidavit trial. This is an entirely appropriate result when a defendant is properly served, and then fails to engage in the process. The author, however, points to the many evils resulting from this process: judgments based on scant or absent documentation of debt ownership; judgments based on mistaken or wrongly stated accounts; judgments on claims falling outside the statute of limitations; and judgments on debts discharged in bankruptcy.

But who is signing off on each default affidavit? A judge. As counsel for a creditor, I don’t get a judgment against the defendant unless the court signs my proposed order. And if I give the court flimsy evidence, then the court should withhold that signature.

The system does not require much to address these perceived or real harms. Try these on for size:

• Amend the rules of pleading to require an affirmative statement that the claim is within the statute of limitations. I have seen many, many complaints on time-barred debt claims. But since the statute of limitations is an affirmative defense, there is nothing patently wrong about suing on a stale claim, and there is nothing that requires a judge to advocate for application of limitations. Putting this requirement in place for claims in the District Courts, where the vast majority of collection work is conducted, would be a potent gate-keeper. This would prevent a large number of bogus claims from reaching the courthouse.
• Enforce the existing rules of evidence in connection with the affidavits being submitted. Nobody is directing the judiciary to rubber stamp anything. The current salary for the 112 District Court judges is $127,252. That is more than adequate recompense to read the complaints and affidavits! None of the harms complained of can occur if a judge does not sign an order. So, upon reading the affidavits, they simply need to apply the existing rules of evidence. And if the affidavit is defective, set that matter in for a disposition hearing. Let the Plaintiff bring its witnesses and evidence to the courthouse. Is that too old-fashioned?
  
  The facts set forth in an affidavit must be admissible, no less than if a live witness is sitting before the judge. The live witness must demonstrate a basis for personal knowledge, or a familiarity with the business records. Also, the documents would have to be shown by the live witness to be properly within the business records of the suing entity. Presentation by affidavit is no different. I lay responsibility for reading the submitted affidavits on the bench. It is not an excuse for Judge Clyburn or others to explain that most affidavit judgments are automatic, based on the submitted affidavit. They are paid to vette the document, not to rubber stamp the claim. And if any lawyer or firm is consistently submitting bogus affidavits, they should not be acquiring judgments. Period. I don’t ask judges to plug holes in my pleadings, nor should they.
• Require an affidavit concerning non-discharge in bankruptcy as a threshold matter of pleading. The Bar is already required to affirm that a defendant is not in active military service. To do this, we check a public database, or hire private investigator’s to check that same public database. With the federal PACER system, it is just as easy for the Bar to check whether a debtor/defendant has been adjudged bankrupt, and whether a discharge has been granted (currently a "for fee" system, but my feelings about whether public access to the federal docket system should be free is for another day). There is also the ability of the debtor, or even the court, to report clear violations of the Automatic Stay, to the bankruptcy trustee’s office for further sanction.

And for a nickel more, I’ll tell you a story about a bridge….