Small Claims

In this section, you will actually learn general procedures for bringing a lawsuit against another person or entity in the Small Claims Court.

Filing the proper paperwork is required in Small Claims Court. Once you have decided to sue, you must next consider the proper procedures for filing your lawsuit. There are several details which, if you overlook at this point will prevent you from getting your case before the judge.

Often the court instructions will say that you must file in writing. However, this does not always mean a letter. In fact, most Small Claims Courts have special forms which you must first obtain and complete. Without these forms, you will not be able to file your lawsuit. To obtain these forms, call the Small Claims Court clerk of the court in your area. You can usually find these numbers in the Government section of the telephone book.

Once you have located the proper court, be sure to give them your address, and possibly the address of any defendants to make sure you have called the right clerk.

Costs

Each court is different, but you should be prepared to pay a filing fee and possibly other fees. While these fees are not exorbitant, you must pay them when you file, otherwise your case will not be filed.

Forms

You can ask the clerk if there is a form or forms which should be completed, and whether they can send them to you or whether you can pick them up from the clerk's office. When you pick them up, be sure to get one or two extras in the event you make a mistake. Also, make sure you have enough forms in the event there is more than one defendant. [Ask the clerk].

Complaint/Petition

Usually the first form you file will be called a petition or a complaint. It is usually easy to understand. You must follow all of the directions and you usually must complete all of the blanks. You cannot rely on the court to provide any information. For example, they will not know your address, or zip code, and they will not usually look it up. Also, they will not look up the address of a defendant. Nor will they assume anything.

If you do not complete the form properly and do the "leg work " yourself, you may end up taking a day off of work and go into court at the time you thought your case was ready, only to find that you did not provide the proper information and you have to take another day off later.

If you are suing a defendant and that defendant is a person, you must sue him or her in their full name, or any name by which you know them. The court must be able to identify the defendant, and you must be able to show the court the defendant is the proper party.

If the defendant is a business, you may have to research the business to find out its full name, the officers, the type of business and their offices and addresses. If the business is a sole proprietorship, you should sue the business and the owner [2 defendants.] If it is a partnership, you should sue the partnership and all of the partners [or at least several main partners.] If it is a corporation, you must sue the corporation and you might want to sue the person(s) with whom you dealt. [For certain legal reasons, which take a lengthy explanation, the court may not allow you to sue a person individually, if they work for a corporation.]

When in doubt, the rule is you must sue all the people who caused you this problem. In a neighbor dispute, you must sue the landowner, and any tenants, if the neighbor is renting. In a car accident for minor damages to property you must sue the driver of the car and car owner, and all cars who are involved who may have caused the problem to your car. [For major damage or injury call our toll-free 800 Legal Hotline for the number of your Plan Attorney]

One word about completing the paperwork. Most Small Claims Courts have small claims advisors and you should call them to answer questions. Your Plan Attorneys, and any other attorneys are generally not allowed to practice law in Small Claims and thus, they cannot assist in filling out the paperwork either. Do not call the 800 line to ask a plan attorney to help you fill out paperwork. She/he cannot because State Bar Ethical Rules usually define completing forms as the "practice of law."

Points to Remember

• Get the right forms from the Small Claims Court. Be sure to get extra forms in case you make a mistake or there is more than one defendant.
• Some fees are required to file a suit. Be prepared to pay them when you file.
• Follow all of the directions and complete all of the blanks on the forms.
• Give the court the full name of each defendant, complete address, and phone number.
• When in doubt, sue all of the people who caused you the problem.
• Call the Small Claims Court if you have questions about the paperwork.

Serving the Defendants

This section deals with the actual notice given to defendants when they are being sued and what happens if there is not proper notice.

Service

All courts will require you to provide proof that you have actually given notice of the lawsuit to all of the defendants. The courts strive for actual notice to each party.

You are not allowed to file a lawsuit against a party or parties and then never let them know of the court date. Regardless of how at fault a defendant is, our Legal System is founded on the principles of due process. That is, a right to present both sides of a case.

It is critical before going to the courthouse to fill out the petition or complaint that you have the addresses of all of the defendants with you. In most courts, you can elect to have the court personnel serve the defendants. This takes time and costs a fee, but often you can be sure that it is done properly.

Once you file your petition or complaint, and you decide that you want to serve the defendants yourself, you must serve [hand] a copy of the lawsuit to each of the defendants. If any defendants are persons, you should have a person over the age of 18 and of sound mind, take your papers to the person's address, either home, business or wherever. This person must be able to come to court and tell the judge he/she actually handed the papers to the defendant, the defendant actually took possession of the papers and the date, time and place this occurred. You should be concerned that this person make a good appearance and be believable, in case the defendant tells the judge he/she never received the papers. Usually the court will require this person to file a document called a Proof of Service with the Small Claims Court.

Improper Service

You cannot simply leave a complaint in a defendant's mailbox. In most courts, First Class mail is not enough either nor is throwing it in the front yard or leaving it on the windshield of the car.

Proper Service

Hand delivery is preferred. Leaving the paperwork at work may be at enough if a person says they will give it to the defendant, but this is not recommended. Certified Mail, Return Receipt Requested is okay, but only if the person you are suing signed for it. [Note: There may be a question if another person signed for it.] Leaving it at home address with a person known as wife, may be enough.

For a corporation, you must get it to named defendant officers, or to their secretaries or receptionists. The courts usually use the rule that delivery "Must be contemplated to get to defendant officer(s)." Thus, delivery to the personal secretary of the president of a corporate defendant is likely proper service. But, leaving the paperwork with the receptionist on first floor of a ten story building owned by corporation, may cause problems.

Avoiding Service

Sometimes defendants will avoid service or avoid you. You know they are in the house, but they will not answer door. If this happens you may be able to use substituted service. That is making three or four or more unsuccessful attempts to the known home address, or business address and then leaving a copy contemplated to get to defendant. This area is tricky though, and judge may not allow it. Also, you cannot wait until person is on vacation and then make the four (4) attempts.

Points to Remember

• All courts require proof that you have actually given notice of the lawsuit to all of the defendants.
• To serve a defendant, you must usually hand a copy of the lawsuit to them.
• For proper service, hand delivery is preferred. In many states, you may use Certified Mail, Return Receipt Requested, but the person you are suing must sign for it.

Court Dates/Changes/Postponements

One of the hardest things for persons using the court system to get used to is the ease with which courts reschedule dates and times, almost without regard to the number of days you have taken off of work, or hired a babysitter. Unfortunately, you can ask, but you can almost never recover these costs of continuances or delays. Often a defendant can delay for several months with court approval, and thereby avoid paying you. While this may not seem fair to you, remember the court places the burden of proof on you to prove your case. Thus, while a judge does not side with the defendant, he/she does not necessarily agree with your case yet either, since your case hasn't been presented. Remember that all of this information is general in nature and is not designed to consider every possible set of facts imaginable. This discussion simply presents the most common areas of concern in bringing lawsuits that are overlooked or misunderstood.

Points to Remember

• Courts reschedule dates and times frequently.
• The defendant may reschedule a number of times and avoid paying you since you don't have a judgment yet.