Small Claims - Plaintiff

Do you even have a case?

Many persons bring lawsuits without ever stopping to analyze whether they may have a case, or without stopping to analyze whether they can prove their case. Remember, the plaintiff, the person bringing the suit, has the burden of proving each element of their case.

Thus, you should stop and analyze your case. Do you have photos of any damage? Do you have the original contract? Do you have the damaged shirt or pants? Do you have witnesses to back your case? This is called analyzing the evidence on both sides of your case.

Let's say you were involved in a fender-bender because a person was speeding and hit you while you were making a left-hand turn. If you stopped and put on your blinker and made the left hand after making sure no one was coming, you are probably exercising due caution. And if you were hit by an oncoming car which was speeding so fast that "it came out of nowhere" and hit you, that person may not have been exercising due caution.

But if you decided to sue, look at all you must overcome to win your case. First, being hit by an oncoming car while making a left hand turn usually places you in the wrong. Thus, you need strong evidence to overcome this burden, for example several witnesses who could testify that the other person was speeding "way too fast." Also, you may need pictures of the intersection to explain your case to make sure you prove that you could see and kept an adequate look-out.

Also, expect the other person to defend himself as best as he can, even it means telling a version of the story which is incorrect as you saw it. It is not uncommon for persons to have two wildly different versions of a set of facts. Whether they are lying or just failing to remember, your job is to anticipate this version of the story and have evidence to refute it.

In this example, while it is not impossible to prove you had no fault in this accident, it is certainly an uphill battle. Often, this case might be better off not being brought. Remember, the defendant might have decided not to sue you, but once you sue the defendant, they have no choice but to defend themselves. The result may be a cross-lawsuit against you [called a counter claim or cross claim]. In our example, without a substantial amount of evidence, the other party may win against you.

Be careful to be objective and to listen to your Plan Attorney's advice in many situations, if they have been through a similar circumstances.

Evidence - Demonstrative

Let's analyze your evidence to determine if it is strong enough. If you took pictures then you should likely bring them to court, if they support your case. [Be careful about bringing to court evidence that will support the other party's claims. - You have no duty to make the other party's case for them, but you will be testifying under oath. This means if you have the pictures in your possession, you must tell the judge you have them, if asked, or if silence or other action might suggest you are not telling the truth.]

Other demonstrative evidence would be receipts, samples of defective goods, models, diagrams, maps, charts etc.

The actual goods are always excellent evidence to bring to court. If a piece of rotten wood was sold to you, bring a sample of it in. Or if your shirt was damaged, bring it in. If there are bruises or bumps, show the court.

Maps, Charts, Lists, etc.

If you intend to bring maps or charts to court, you should understand that the judge does not know you or the other party usually. Understand that the judge needs to be convinced that the evidence you are providing to him/her is real and not doctored or photocopied or that something harmful to your case was not left out. Thus, you should be prepared to have the original of all documents in your possession and you should be able to tell the judge from where these documents came. It would not hurt your case to have a person ready in court to testify about where the records, or lists or charts or maps came from if possible. Judges use common sense. They will not need the drafter of a map of the United States. But they may need to know who drew the map of a particular piece of property or an area relevant to the lawsuit.

You should be especially careful to have this evidence if you will be relying heavily on this piece of evidence for your case, and without it you would lose. If it is this important to your case, be prepared to have the independent witness in court to testify if necessary.

Evidence - Eye Witnesses

Much of the evidence received in court is through witnesses. When you are deciding to sue, and you have an eye witness, be sure that you have that witness in court to testify. If a person saw the accident on which you are suing, either contact them to bring them to court, or subpoena them. The Small Claims Court clerk will tell you how to subpoena witnesses.

If you have an eye witness to your case you should take the time to discuss the case with them before going to court. Just because someone tells you they saw the accident, does not mean that they will help you, even if you believe you were right. If they told you the light was green at the scene, be sure that's what they will say under oath, or try to learn if they are unsure of the events. Part of being objective is to look for any hesitation by a witness. A judge or the other party may ask them a question and they may respond differently. Also, be sure you find out if they can draw maps or charts if necessary or identify other persons in a manner that is helpful to your case.

Remember, while you need to find out what these persons will say to be able to determine whether they will help your case, you do not want to give the impression that you put words in their mouths, or that you coached the witnesses.

Actual witnesses are usually the only witnesses allowed to testify, with certain exceptions. Sometimes character witnesses can testify, but there are complicated rules regarding this which are beyond the scope of this discussion. We will discuss expert witnesses shortly.

You are usually not allowed to bring to court a person who simply can testify that another witness told him that something happened. This is called hearsay. The reason that you cannot bring in a person to testify that another person told him something, is because the court wants to evaluate the credibility of the person who says a person told him something. These rules are complicated and generalizations should not be made. But if you only have a witness who says another told him someone else said something and this will help your case, you may want to bring him to the court's attention, in the event one of the exceptions to the hearsay rule applies. The judge, in Small Claims Court, will decide. But remember to be prepared with other evidence in case the judge does not allow this testimony.

Eye witnesses are also not permitted to give their opinions in most cases. Thus, if the only way to prove your case is to bring in this witness who knows the defendant and will say that he is a"liar", forget it. The witness must testify about the case and about things in this case about which the witness saw, heard, or experienced in some manner.

Eye witnesses also cannot usually testify about things not related to the instant set of facts. For example, a witness who will say that the defendant sold him defective goods three different times, cannot usually come into this court and testify that because he sold him defective goods before, that the goods in your case must also be defective. You will not win your case in most instances with such testimony, if that is all you have. The opinion of this witness about the defendant or what this defendant did to another person in the past is irrelevant [as defined by the rules of evidence] to this case.

Of course, if that is all the evidence you have and you cannot otherwise win, you might have these persons available to testify in the event that a judge will allow their testimony as an exception to the very general rules which are discussed above. However, you should be much better prepared to win your case, or perhaps consider not bringing it, if that is all the evidence you have.

Evidence - Expert Witnesses

Certain witnesses are allowed to testify in certain cases on matters which the judge or jury may not be able to understand clearly. Small Claims Courts have a means for allowing certain witnesses to come to court and testify about certain evidence, just as in regular court. These witnesses are often called expert witnesses.

The purpose of experts is to testify about facts which a judge or jury may not understand. For example, if a mechanic did not fix a radiator properly, how do we know? We can all tell if the radiator is fixed or if it is not. [since we can see the water running out or the car overheating] But just because a car radiator leak is fixed and then it leaks a week later, does not mean the work was defective. It may simply be another leak unrelated to the first. A mechanic can come to court and show the court that it is his/her opinion that the second leak was either related to, or unrelated to, the first leak. Obviously, this type of testimony can be critical in establishing any wrongdoing of the defendant.

Whenever you have a case concerning an area which is difficult to explain, you may want to talk to certain persons familiar with that field to see if you have a case. If they believe you do and they are an expert in that field, you may ask them to come to court to give their opinion.

Two things - First, be sure to objectively explain the facts to your expert [if you give them just your argument and you forget to mention a critical fact, and they come to court and that fact arises in court, it may change their whole opinion.] Second, be sure they are an expert in their field. A plumber may or may not be able to testify about an air conditioner unit. Be sure they have experience in dealing with the subject matter in the lawsuit.

Do not over-use the expert however. For example, you do not need a cotton manufacturer to tell the judge the shirt was ripped. However, you may need such a person to state that the shirt would not have ripped unless the dry cleaner put a certain chemical on it.

Evidence -The Other Party

Do not forget the other party. They get a chance to put on their evidence also. Try to understand their point and try to understand in advance, if possible, their argument. Then you can better prepare to bring evidence to court to show the judge the other party is wrong.

The other party's version of the incident might likely differ from yours. Do not be afraid to ask yourself "what if the other party says this or lies about this?" Instead of going to court and calling the other party a liar, you should be prepared to show the judge how the other party is lying. You should do this not only with your words, but with your explanations and with supporting pictures, documents, witnesses etc.

Most people never think of this aspect and come out of court muttering that the other person lied. If they had thought about this in advance, they could have been prepared to show the judge any misstatements or lies.

Points to Remember

• The plaintiff has the burden of proving each element of their case.
• Expect the other person to defend himself as best he can, even if it means telling a version of the story that incorrect as you saw it.
• Analyze your evidence to determine if it is strong enough to win.
• Have a person in court to testify about the source of maps or charts.
• Use eye witnesses to support your case.
• Be sure any eye witnesses will confirm your story.
• Use an expert witness, if necessary, and if costs permit.