Here we will discuss representing yourself, in your states small claims or magistrates court.
The great thing about small claims court is that the formal rules of evidence/procedure do NOT apply. You do not need to be a lawyer or bring a lawyer to a small claims proceeding.
Ever seen an episode of Judge Judy? Judge Joe? Judge Wapner? If so, you already have a pretty good idea of small claims court.
In essence, small claims is an “equity” court. Meaning that the judge is focused on making a decision based on what is fair, under the circumstances, rather than diving into the nuances of the various laws that may apply in the case. You go in, make your pitch to the judge, the other side does the same, and the judge will decide (though often you get the answer in the mail…not right away like on TV).
But this is a court of law. So the claim you bring needs to be based, in the law. So understanding the law, at even a basic level, can be very helpful. For example, say that you are suing someone for breech of contract. It would be helpful to understand what constitutes a valid contract and what you are allowed to ask for if the other side to the contract breaks the contract. It may be worth checking out my episode on legal research in this regard.
Small Claims court judgments are, generally, money judgments (meaning you can ask the court for money and nothing else). Some states do allow you to request property be returned…you can ask the court clerk if this applies in your state.
Lets talk about filing:
You need the physical address for the defendant as well as their first and last name. IF you are suing a business? You need to get the address for their “registered agent”, contact your states dept of corporations and they will give you this (most have a webpage where you can search this…google is your friend).
Generally speaking, you need to file the case in the county where the defendant lives. If they live in a different state, you get to travel. No…you can not sue for your travel expenses. Couple of exceptions to this rule, one is if you have a written contract, signed by the defendant, and that contract states where the suit is to be filed, the other is some states will allow you to sue in the county where the incident happened in addition to where the defendant resides.
What if someone is suing you in small claims, and you want to “sue them back”? Yep…you can do this. It is called a “counter claim”. You will want to contact the clerk of the court for the proper forms…but if you are going to have to go to court, if you have a claim against the party that is suing you, you can make this claim part of the trial. Remember, if you are filing a counter claim, you are the “plaintiff” for that claim and have the burden of proof (so you have to prove your claim in court).
As I said earlier, you do not need to know the rules to go into small claims. That said, your judge will (Likely) be a lawyer. So if you can present your case to them in a way that focuses on the law? That can help you as you present the case. For example, if you have a contract case and you believe that the contract was invalid because, say, there was no consideration for the contract. You want to make sure you bring this up in the proceeding. Or say that you are the defendant and the claim was filed after the expiration of the statute of limitations. You want to make sure the judge knows about this law. So while you do not need to be a lawyer, or even know the law, researching the law prior to going into court can help. I have an episode on legal research that may help in this regard.
With this in mind, I would like to cover a few topics worth considering as you prepare for your day in court.
FIRST: Burden of proof- If you are filing the suit, you have the burden to proof. Take this seriously. The burden is “preponderance of evidence” (more likely than not). You want to bring the evidence you have or can gather. Specifically, you have to prove the “elements” of the claim you filed. Elements are the facts that must be proven for a particular case. So, for example, say you are suing someone for negligence (they ran into your car in the parking lot). The elements for a negligence claim are duty, breach, causation, and damages/harm. You have to prove that the other driver had a duty of care (they did), that they breached this duty (for example, they were not paying attention or were operating recklessly), that the breach of duty caused the accident, and that because of the accident you suffered economic harm. If you are unsure of the elements for the claim you are filing? Google is your friend…
What if you are the defendant? You want to bring evidence to prove your version of the facts…as well as reminding the judge who has the burden. For example, using the example of the car in the parking lot, say that you can prove the plaintiff was violating the law when the accident occurred (they were driving the wrong way on a one way street)…that would help show that the plaintiff, not you, was the cause of the accident.
Speaking of evidence? What constitutes evidence? You will testify, telling the judge you version of event. But what else can you bring to the case to prove it? Be creative:
Photos/videos/copies of documents that help prove your case. Heck, most of use have, in our pockets, a device that can do all this and more. Think of it this way…if you were the judge in the case, what would you want to see…then ask a trusted friend the same question.
Witnesses? If you have em, and they will attend? Great. If they can not attend (perhaps they have a job that does not allow them the day off)? Having them sign an affidavit (This is a written statement that they sign/date and also provide their contact information), detailing their observations is better than nothing.
Judicial notice: This is a neat trick that you can use in certain cases where the judge will provide the evidence for you. Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted. For example, if you need to prove that when the event you are suing about happened on, it was a “low tide”. If the other party to the case, agrees on the time frame, and you can ask the judge to take judicial notice that low time occurred on a particular date at a particular time.
How much evidence do you need? I view this like ammo to a gunfight…? The answer is always the same…more. But seriously, you want to put some time and thought into this part. Be creative…what information would you like to know about this if you were the judge? Ask a trusted friend the same question…then go out and try and find that evidence.
PROVE UP DAMAGES: do not forget to do this. For example, if someone ran into your car and you had to get it fixed and had to rent a car while the repairs were being done? Bring both receipts.
TAKE THE EMOTIONS OUT OF THE PRESENTATION/Be polite/courteous/respectful. Bonus points for this. You may well be angry with the other party, perhaps for good reason. But the anger, if it shows through in your presentation, will not help the presentation.
One good way to help remove some of the emption is to practice: have a friend pretend to be the judge, and practice presenting your case to them. Bonus points for not telling them anything about the case up front…they may be able to give you some insight into the weaknesses of your presentation.
Wear your Sunday best (be professional). Short/flip flops/t shirts and the like are not acceptable.
Copies: bring 3 copies of everything. 1 for the other side, 1 for the judge and one for you.
Enjoy: Seriously…if you can, you put the work into preparing, present and enjoy it…Seriously….you got this!
On more thought…the “bad news” if you will; Winning the case does not necessarily mean you are going to be able to force them to pay. Once you win, you have to give the defendant 30 days to pay the judgment. The 30 days is provided to allow the defendant to appeal the judgment. IF they refuse, after the 30 days have passed, you may need to bring them back into court for a “writ of execution”…the court can garnish their income, or take money out of their bank accounts, or even order their personal property be sold…but to get such an order you have to return to court. If you do win and they are reluctant to pay, consider giving them a discount to settle.