Small Claims - Plaintiff

For this discussion we will assume that you wish to go forward with a possible lawsuit in Small Claims court. There is obviously certain information which you must know, or you may lose your rights and have your case dismissed.

Preliminary Problems in Determining Whether to Sue

Will you collect?

One of the first questions which you should answer in deciding whether to sue a party or not, whether it is in small claims or to retain a lawyer in other courts, is whether you can collect the money owed to you.

The purpose for suing a person or entity is to obtain monetary damages or sometimes other damages from that party, since they have wronged you. But if the person or entity cannot pay you, you may be wasting your time bringing your lawsuit. Even when you win, courts will only make an order that the loser pay. Courts usually do not make the person hand over the money right then and there.

You should do a little research on the property or business of the party you wish to sue. Do they own a car, house, have a job or have other property? Is the defendant sick, disabled or unemployed or a minor? While none of these things are usually legal obstacles to recovering money [except perhaps the conduct of a minor], they are certainly practical obstacles. There is often no sense in "throwing good money [your money] after bad money [that is the money you already have lost]. Many times lawyers will advise clients against suing, even when the clients are perfectly right and the defendant may not have any defense. While clients do not always understand this, it stems from the experience of having seen the uselessness of suing a person who really may have no assets.

In deciding whether to sue, be sure to at least attempt to alert the other party to the problem. Most states will require that, at the very least, you send a letter identifying the problem and demanding the other party fix the problem. This is called a demand letter, but you are generally supposed to be diplomatic in your request to fix the problem. Once drafted and sent to the other party, you may be able to bring this letter to court and have it help your case.

Also, there are many times when such a letter will resolve the matter and avoid a lawsuit.

When you send a demand letter, you should properly address it to the other party. You will be required to take the time to locate the full name of the person or company and their full address. Identify the problem clearly in your letter. You should tell the party how the problem is affecting you and detail your losses. It is wise to avoid stating that you will sue for a million dollars for the shirt the cleaners just ripped, because it was your favorite. Such a statement is unlikely to resolve the matter and it will certainly not let the other party know you are serious about settling this matter.

You should give them a deadline to pay or to act. Your letter should be sure to state where they should pay or act. Finally, you should tell them what you will do after the deadline expires.

Suing - Other Considerations

Before suing, you ought to consider how much you are suing for and how much time your lawsuit will take. You first have to properly prepare your case and you may have to spend time doing so. This may mean taking off work. Also, you will be required to take at least a full day off work on your court day. Often, cases are postponed to allow other parties more notice or more time to prepare or for more evidence or if witnesses are unavailable.

Be sure to factor several days off of work into your equation when deciding to sue. It will do little good for persons to take off of work and lose $100 just to sue someone for $20.00. Most of the time this missed work is not recoverable [although you should always ask for it].

Also, be objective with yourself. If the case and appearing in court will make you so nervous or upset, you might choose not to sue. Again, you have to factor all of these things into your case. Do not avoid a lawsuit just because you will be nervous, since everyone, but the judge and the clerk will usually be nervous.

Points to Remember

• Can the person you are suing pay you if you win your case?
• Attempt to resolve the problem with a demand letter. State your problem and the results you want with a deadline for action.
• Consider how much of your time the suit will take and decide if it is worth the trouble.

Have I Chosen The Right Court?

Be Sure You Have the Right Location of the Court

In small towns or cities, there is often no problem with determining the proper small claims court, or the proper branch of the court. However in big cities, there may be a number of branches of the small claims court. Whether you are bringing the action in the proper court is a question best answered by the small claims court clerk. You should call and tell them the type of action and where you and the defendants reside and they will usually tell you the proper court.

In many actions, defendants have certain rights not to be sued in certain courts. It is your duty to make a determination of whether the defendant has been sued in the proper court. Usually you can sue a defendant where the defendant resides, where the action arose, where the contract was made, where the defendant does business and as set forth in various laws. Be sure you are suing the defendant in one of these locations, even if it is inconvenient for you.

Sometimes persons can sue a person in a place convenient to the person bringing the lawsuit. But this can be a risky strategy. If the defendant does not object, the case may go forward and a judgment awarded. However, the defendant may object and ask for a transfer and might receive it if is allowed by statute. Also, it is even possible that the judgment awarded against the defendant may not be valid or may be subject to being set aside by the defendant at a later date. Be sure to follow the rules and find the proper court.

Proper Matter for the Court

Before deciding to sue in small claims, you should analyze whether your matter is a proper matter for the court. If you are seeking damages, such as say $1,000.00, it is likely the proper court. If you are seeking to enforce performance or to restrain performance you are usually in the wrong court. Marital divorces, child support and custody and related problems are not usually bought in small claims, although monetary disputes between spouses may be resolved there if necessary.

Also, probates cannot be filed in small claims courts.

Actual personal injury cases, even if minor, ought to be discussed with your Plan Attorney before deciding to sue in small claims court. The damages recoverable in such cases usually involve some past and future pain and the damage amounts may add up to exceed the jurisdictional limits of the small claims court quite rapidly. Also, by suing for the jurisdictional amount, you may be compromising your future pain and suffering award. Once you sue in small claims and settle or win [or lose], you cannot bring your case in another court without the presence of significant other circumstances. In any accident case, always talk to your Plan Attorney before suing.

However, property damage accidents with no injuries may easily be resolved in small claims court, so long as the damages do not exceed the jurisdictional limits of the small claims court.

Jurisdictional Limits of Small Claims

Most small claims courts have jurisdictional limits. That is, the small claims courts will only accept cases in which the damages sued for are less than a certain amount. If the damages sued for exceed a certain level, the lawsuit may be best brought in other courts. While, as you will see, it is not an obstacle to suing for more than a jurisdictional amount, the judge can usually only award amount equal to or less than the jurisdictional amount. Usually these amounts are between $1,000 and $5,000 and they are fixed by state law. A quick call to the small claims court clerk in your area can answer this question for you.

Points to Remember

• Be sure that you have the right court. The court clerk is an excellent resource for this information.
• Choosing the wrong court may mean your judgement may be invalid.
• Marital divorces, child support and custody are usually not appropriate for small claims court. Probate of a will and personal injury cases are also usually not handled in Small Claims Court.