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A tipped scale
In a system where defaults are rampant, and where debtors in many courts are presumed to owe the money, some clerks make it part of their job to assist plaintiffs - even those who skip hearings -- in ways that flout court rules.
It is a common scene in the windowless, basement room in New Bedford District Court, where assistant clerk-magistrate Thomas W. Alfonse often runs overflowing small-claims sessions. When a plaintiff fails to respond to the call of a lawsuit, Alfonse routinely prompts Joseph McIntyre, New Bedford's lead covering lawyer, to pick up the case - even though, under the rules, such cases should be dismissed.
During one busy session last fall, Alfonse asked, ''Anyone want to answer for Mr. Bakst?'' referring to a lawyer not present that day. McIntyre said he would pick up the case. When no one spoke up to cover a Sovereign Bank lawsuit, McIntyre jumped in: ''I'll answer for them.'' Similarly, on a Bank of America case, Alfonse coached, ''That's Daniels's office.'' Again, McIntyre obliged. And when a lesser-known firm, Natco, had its suit called, and no one responded, Alfonse asked McIntyre to represent the no-show plaintiff.
''My incentive is volume,'' said McIntyre, a former state legislator, in an interview. He answers for up to 10 plaintiffs a day and makes $15 to $20 per case.
The Natco case illustrates two common abuses of the system. First, the case should have been dismissed when the plaintiff did not appear. Second, Alfonse violated court rules when he granted McIntyre a postponement, because the lawyer was, not surprisingly, unprepared to try the case.
Clerks routinely grant these delays, called continuances, when plaintiff lawyers say they need time to prepare. Defendants are almost never shown such deference.
Kiriakos Stergiotis and his wife, Phyllis, owners of a pizza shop, who had been sued by Natco, were outraged that the case was postponed: ''If they want to bring you to court and they expect you to be there, they should be here too,'' Phyllis Stergiotis said.
Asked in an interview why he didn't dismiss cases when neither the plaintiff nor its lawyer appeared, Alfonse said, ''It's more paper, more court dates. It's better if we work it out today, for everybody.''
In the case of Damon, the Iraq veteran, the court allowed Norfolk's covering lawyer a continuance even after Damon had flown home from Washington for the 2004 hearing. When the Globe asked Martin, the clerk in the case, why he allowed the delay, he said, ''If Peter Damon had no idea that he could object to a continuance, it's not the clerk's responsibility to tell him.''
Judge Connolly, in a letter to the Globe, pointed to the text of the state standards for small-claims proceedings, which strongly discourage such continuances. It says: 'If the attorney isn't prepared to prove his or her case, the matter should be dismissed...unless there is a showing of good cause.''
Martin also said it was not his job to question why Norfolk had, under oath, indicated to the court that Damon was not in military service.
Norfolk President Daniel W. Goldstone, in a letter to the Globe, said he did not know Damon was in the Army. But Damon and his mother say they told Norfolk debt collectors many times that he was deployed to Iraq and then in a military hospital.