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Suing In Small Claims Court

HandelontheLaw.com Staff Writer

Thursday, January 16, 2014



Suing In Small Claims Court
Small Claims Court

Small claims court is provided by most states to resolve less expensive and less formal court cases for relatively low amounts of money. The maximum amount for which you can sue in small claims differs from state to state but it tends to be $10,000 or less. No matter how convincing your suit may be and how high your money damages may be, the judge cannot award a judgment for more than the maximum amount.

As you can tell by the relatively low maximum amount, small claims court resolves relatively small matters. Those matters can include: less serious car collisions and dented fenders; defective work performed on your home by a contractor; a defective product; a personal loan that isn’t repaid; a rental security deposit that isn’t returned; charges for services that weren’t performed or were poorly performed; and any other situation for which the maximum amount or less can fully reimburse your losses. In addition to recovering money, some states empower small claims courts to direct a person to do or not do something. For example, if your neighbor borrowed your lawnmower and won’t return it, the court can direct him/her to return it; however, most states only allow small claims courts to award judgments for money. How, then, can you sue someone in small claims court? Rules differ from state to state but we can give some generally helpful ideas. You will notice that the lion’s share of the work will occur BEFORE you go to court.

First, you (the Plaintiff) must decide who (the Defendant) should be sued. If you sue “A” but “B” is the one who should actually pay you, the court won’t give you a judgment against “A” and you’ll spend time, energy and money for nothing. Choosing the correct Defendant isn’t necessarily easy because sometimes you will need to sue someone else besides or in addition to the obvious person. The car that dented your fender was operated by one person but might be owned by another person, in which case you might sue both of them. The contractor who performed the shoddy work on your home might be a subcontractor or an employee of a company. The defective product was sold by person/business but he/she/it might be an employee or belong to a chain of stores or be owned by another company. The court system understands that many people in small claims court aren’t used to thinking like lawyers, so many systems provide an advisor who will help you with this and other steps along the way. California, for example, offers small claims advisors for each county, who can be found here: http://www.courts.ca.gov/selfhelp-advisors.htm Some other states also provide advisors who can be found by visiting that state’s judicial web site or calling your local bar association. Failing those possibilities, you can consult with a lawyer. In most cases, the parties to a small claims lawsuit represent themselves and do not use lawyers; however, you can consult with a lawyer and some states will allow a lawyer to represent you in small claims court.

Second, obtain a clean notebook and an expandable file folder to write all your information and keep copies of your documents. Write down everything pertinent to your case and keep copies of all documents related to your case.

Third, a number of states require proof that you demanded payment from the Defendant(s). You can provide that proof (and perhaps get paid without ever having to sue) by sending a Demand Letter to the person(s) who owe you. A Demand Letter can be short and not-so-sweet, addressed to the person(s) who owe you and demanding payment for whatever the reason and within a certain period of time (often 10 – 30 days). Mail a copy to each of these person(s), preferably sent Return Receipt Requested, keep copies of any letters sent, and keep the documents related to the Return Receipt Requested. California will even help you write the letter by using a program and simply entering the pertinent information, here: http://www.courts.ca.gov/9739.htm If the person(s) doesn’t pay you within the designated period of time, you are ready to file your suit.

Fourth, determine which small claims court should try your case. Filing in the correct court is important, as incorrect filing can get your suit dismissed, cost more filing fees and delay your case. If you do not know which court is proper, ask the Small Claims Advisor, a court clerk or a lawyer.

Fifth, the clerk of the court in which you must file your forms will have the proper forms or know where you can obtain them. Request those forms or their location from him/her. Then fill out the forms with the assistance of the Small Claims Advisor, court clerk or a lawyer, make the required number of copies for the court and one for yourself.

Sixth, file your forms and pay the filing fee or get a waiver. Your forms should be filed with the court clerk and you will have to pay a filing fee, often geared to the amount for which you are suing or other factors. The clerk will advise you of the filing fee. If you cannot afford to pay a filing fee, you can request a waiver of filing fee, complete it and give that to the clerk with your claim papers. If the waiver is granted, you will not have to pay the filing fee.

Seventh, when you file your completed forms, the court clerk will give you a hearing date & time and place. The clerk will file-stamp your forms and will typically give you enough copies for yourself and for each Defendant.

Eighth, serve a copy of the forms on each Defendant within the time shown on your paperwork. “Service” lets the Defendant know that he/she is being sued, the reason for the suit, the hearing’s date/time/place and how the Defendant can respond to your suit. You cannot serve the papers and neither can anyone else named in the suit. The person who serves the papers on each Defendant must be 18 or older and not a party to the suit, so the server can be a professional process server or a friend/relative/coworker. The server must serve the papers on the Defendants (usually by hand-delivery because other methods are more complicated), must do so within the time limit, must complete proof of service for each Defendant and give the proof of service to you. You must then file a proof of service for each defendant.

Ninth, plan for your hearing. You won’t have much time to argue your case before the court, so you should do everything possible to be ready and organized. Write down what you intend to say. Gather all your documents supporting your argument and make 2 copies of each document (the original for the court, 1 copy for the Defendant and 1 copy for you). Organize your witnesses, make sure they know the date/time/place and will appear. If a needed witness will not go to court for you, ask the Small Claims Adviser about preparing and serving a subpoena on the witness, forcing him/her to appear in court.

Tenth, it’s time for your hearing. The hearing is like a 15-minute “People’s Court” or “Judge Judy” without the TV lights but sometimes with just as much judicial ego. Get there early with your arguments and documents. The judge will call your name, you will go to the front of the room, and the judge will probably try to get you and the Defendant to settle the case. If you and the Defendant(s) don’t settle the case, the hearing will proceed. You (the Plaintiff) will go first, tell your argument and present your supporting documents to convince the judge that the Defendant(s) should pay you the amount of money you’re requesting. The judge might ask you questions, which you should answer as directly as possible. The Defendant(s) will then have a turn to present his/her/their defense. You are both getting your turn and the judge may return to you for yet another turn, so don’t interrupt the judge or the Defendant(s) when they are speaking.

Eleventh, the judge will issue his/her decision, usually immediately. If you win, you’ll get a judgment for the amount determined by the judge and based on all the evidence, plus fees and court costs. If you lose, some states will allow you to appeal that decision to a higher court but other states will not allow you to appeal.

Twelfth, receiving a judgment is one thing but collecting on it is another. Whether or not you have a judgment against the Defendant(s), you might not be paid. Consult with the Small Claims Advisor or a lawyer for advice about the many methods of judgment collection.

Kathy Catanzarite

[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]


Source: Kathy Catanzarite - Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.





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