Small Claims - Plaintiff

The first thing to remember is that if you are the plaintiff in any case you must prove your case to the judge. You have the burden of proof. Thus, if money is owed, the first thing you must do is prove that the money is owed. If you have a contract, or written agreement of some type, bring it to court and show it to the judge. If you have a witness to the contract, you need to inform the judge, who may ask certain questions to your witness.

You should fully anticipate that the defendant will say that he never borrowed the money or that he never purchased or received certain goods, especially in the case of an oral contract. You must bring to court the evidence to prove the fact that certain money was lent to or owed by the defendant. You may have to get creative, but you should understand that courts will infer certain conduct. For example, if you can show the defendant paid you some money and there is a pattern to the monies paid, for example monthly, the judge may infer that later payments are owed. This is the part of the case that you must be prepared to handle [it also shows why you ought to get everything in writing.]

You might also call witnesses to testify that the defendant received certain goods, or was seen using these goods. While this may not establish that the goods were the goods you sold him, it may place a burden upon the defendant to explain where the goods came from and to produce receipts for the goods.

In cases in which money is owed or lent, the type of evidence supporting such cases can be voluminous. You should accept the responsibility to handle the proof problems associated with your case if you want to win.

Points to Remember

• You must prove the money is owed.
• You may need witnesses to testify that the defendant received certain goods.

Defective Services

If you are suing because the defendant rendered services which were defective, you should be prepared to show the judge why they were defective. Obviously, a shirt that is sent to the cleaners and returned torn is self-explanatory. You should prove the shirt was not torn before you took it to the cleaners, and that it was torn when you picked it up. Otherwise you can expect the defendant to say that it was either ripped when it came into the cleaners, or it was not ripped when it left the cleaners. You must prove that the shirt was torn by the cleaners.

A more difficult problem is that where the services rendered are not so clearly defective. For example, the case of the car running roughly. The mechanic fixes the car. The next day the car is still running roughly, but not quite as roughly as before. How do you prove the services were not rendered adequately? This is a tough case. On one hand, the mechanic will testify that he performed certain work and has parts and documents to show certain work was done and parts were replaced. On the other hand, the car is still running roughly.

You should note that it is unlikely the judge will come out to the car and test it for himself. Cases are based on evidence brought into the courtroom. So you will need some objective evidence to prove how the car was running prior to the mechanics work. One way to do this would be evidence from another mechanic's tune-up machine, such as comparing a computer printout made by the first mechanic to a computer printout made by a second mechanic. Getting this type of evidence is complicated and, of course, assumes that you knew you would become involved in a lawsuit. This hindsight is not often realistic, but that is why attorneys constantly stress the importance of getting documentation and getting second opinions.

Finally, you should know that personal services are not always defective simply because you do not like them. Judges measure such contracts based on an objective standard of satisfaction, not your subjective satisfaction. In the above case, if the mechanic can prove that he did certain work and that the car was running better after the work he did, the judge may simply say that you are too sensitive to the rough ride and that most reasonable people would feel the mechanic performed proper services for which he should be paid.

Points to Remember

• Be prepared to show how the services were defective.
• Cases are based on the evidence brought into the court room.
• Services are not always defective simply because you do not like them.

Breach of Warranty

When warranties are not honored, this may allow you to sue a party who gave you a warranty, especially if you have already paid for services. Remember, however, if you have paid the defendant $30 for a toaster, used the toaster every day for a year and a half, and then the toaster breaks and the warranty is not honored, you may not be able to recover your entire $30. [Of course, you should always ask for it in a lawsuit.] The judge will likely determine the value of the toaster on the date it broke and possibly award you only a portion of the value of the toaster.

To recover on a breach of warranty case, you must provide the warranty. You might fully expect the other party to "forget" to bring the warranty to court or to argue that there was no warranty, or even to bring a warranty from some other product which is more favorable to their side. It is not their burden to bring the warranty to court. It's yours.

There are many aspects of warranties not covered by this section. This discussion is solely concerned with the most common areas dealing with warranties. If you have a problem involving a breach of warranty, please call our toll-free Legal Hotline for the number of your Plan Attorney.

Points to Remember

• You must provide a copy of the warranty.
• Extended use of an item may mean that you will not receive the full purchase price if you sue for breach of contract or breach of warranty.
• The defendant may conveniently forget the warranty or attempt to substitute a more favorable warranty.