Small Claims - Defendant

When you are being sued for money owed, or in any of the following situations, you should keep in mind the burden of proof is on the plaintiff. The person suing you must produce evidence that shows that what he/she is arguing actually happened and that he/she was wronged in some manner. If the plaintiff fails to introduce this evidence you will win, no matter what actually happened.

It is a good strategy to question everything about the plaintiff's case, within reason. Take each item which the plaintiff has presented and have actual evidence to dispute it. Of course, you cannot lie to the judge, but you should take time to think about the plaintiff's case and each aspect he/she must prove. Let's do this for a promissory note example.

Let's say that the plaintiff is suing you for $2,500. The plaintiff claims that two months ago he lent you this money and you were supposed to pay it back within 30 days. To prove his case the plaintiff must introduce actual evidence that you both had an agreement. You can introduce evidence to show that there was no agreement. See if anything written would tend to show that the money was loaned to you by the plaintiff. For example, review your checking account or other accounts and see if a deposit for this amount is in your account. If it is not, you may wish to volunteer this as evidence. of course two words of advice: (1)Be sure the plaintiff will not argue several installment payments were made to you which match certain deposits in these accounts; and (2) be sure to understand that this is not conclusive proof that you did not receive the money, since it could have been received in any number of ways. Another word of caution before volunteering your bank information, if you lose this gives the plaintiff all the information he/she needs to file a writ of execution and attach your account if you do not pay the money. This evidence should never be volunteered unless necessary, and usually then only on the advice of an attorney.

Also, you should attack the time and place of the agreement. The judge will be particularly interested in the circumstances surrounding the agreement, especially if there was no written agreement. If the plaintiff says it occurred on X date and in X place in a face to face meeting, and you are holding an airline ticket showing that you were in another city on that date, you may convince the judge the plaintiff's case is weak, or that the plaintiff's recollection is faulty. If it is faulty in this area then maybe it is faulty on the amount of the money lent, or the terms of repayment. This is exactly the doubt you want to place on the plaintiff's case.

Of course remember, if the plaintiff has evidence that you accepted the amount of money, you better have evidence to show it was a gift or a donation or something else. Otherwise, the plaintiff may convince the judge that the money was lent to you despite the lack of certain technical requirements.

Another strategy may be to convince the judge that the plaintiff is mistaken or misstating the amount which you owed. [You may do this if there is strong evidence that a debt exists, or you can argue to the judge that no contract exists. You are saying that if the judge finds a contract exists, then the amount is incorrect as argued by the plaintiff].

The plaintiff may be seeking damages for which he/she is not entitled, for example, lost time from work, or costs of travel and parking at court. Plaintiffs are told to ask for everything, even if it is not all awarded, and even if it is more than the jurisdictional amount of the small claims court.

In your defense, you should pick apart each aspect of the damages sought by the plaintiff. Maybe they calculated interest wrong, maybe the plaintiff did not actually lend you all they said. Maybe the plaintiff "forgot" to tell the judge you repaid certain amounts of the loan. Or maybe the money paid to you was, in fact, payment for services which you performed and was not a loan. All of this needs to be explained to the judge and you should approach the case as if you have the burden of proving any of these items.

You should have written evidence of all such items you are attacking about the plaintiff's case. If you have a witness who can testify that he saw you pay the money back to the plaintiff bring him/her to court. If your defense is that you paid the money to the plaintiff, but you have no witness to prove it think about what you can prove. Maybe you can prove that someone in the bank line could testify that they saw you withdraw $2,500.00 and that maybe they heard you state you were going to pay Plaintiff the money. While this is not conclusive, it may allow the judge to infer payment. It is certainly better than throwing in the towel and making no defense.

If you are being sued for receiving certain goods and not paying for them, your defense might be that you never received them. [Remember you cannot make up facts, since you will be testifying under oath]. However, remember the plaintiff must prove that you received them. If he calls a witness to testify that he picked the goods up at plaintiffs and drove them to your shop, certain questions arise. Did he find the right location? Did he give them directly to you? Who did he give them to? Maybe he left them at the front door because the door was locked and someone stole them. Be sure to think of these aspects and have arguments for them. Of course, you can bring in your witnesses to show that no goods were ever delivered.

In short, you should prepare your case as thoroughly as the plaintiff should prepare his/hers and try to anticipate all of the elements the plaintiff will use to build his/her case. Then take each one apart to see if you have evidence to show that the plaintiff was misstating or mistaken about certain key facts. If you can do this, you may win, regardless of what actually happened.

Points to Remember

• Question everything about the plaintiff's case, within reason.
• Examine all written materials that relate to the case.
• Be careful about giving bank information to the plaintiff.
• Attack the making of the agreement, if possible.
• Present information to show the money was a gift or donation.
• Convince the judge that the plaintiff is mistaken or misstating the amount you owed.
• Pick apart each aspect of the damages sought by the plaintiff.
• Have written evidence of all items you are attacking about the plaintiff's case.
• Show proof that the goods were not received, if possible.