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Filing and Winning Small Claims For Dummies®

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Table of Contents

Introduction

About This Book

Conventions Used in This Book

(Not So) Foolish Assumptions

How This Book Is Organized

Part I: Making Your Big Problem a Small Claim

Part II: Getting Ready to Go to Court

Part III: Presenting Your Case in Court

Part IV: Dealing with Specific Problems

Part V: Handling Post-Trial Issues

Part VI: The Part of Tens

Icons Used in This Book

Where to Go from Here

Part I: Taking Your Big Problem a Small Claim

Chapter 1: Understanding the Ins and Outs of Small Claims Court

Starting Down the Road to Small Claims Court

Doing It Without a Net — Or a Lawyer

Understanding Why Small Claims Court Rules Seem So Confusing

Getting the go signal for small claims court

Being rejected by the small claims system

Preparing for Your Big Day

Showing Up in Court

Living Through the Aftermath

Chapter 2: Deciding if Your Case Belongs in Small Claims Court

Why Small Claims and Not Regular Court

Evaluating Your Decision to Go to Court

Keep It Civil: Civil Suits versus Criminal Cases

Knowing what a civil suit covers

Knowing what is not a civil suit

Understanding the laws of your state

Limiting your options: Subject matter jurisdiction

The goal of substantial justice

Law versus Equity Compensation

When it’s all about the money: Law cases

When money isn’t everything: Equity cases

When Small Claims Court Is Not For You

When you want too much money

When you want to sue the government

When you want to sue a charity

When you want to bring a suit against bankrupt defendants

When you want to sue the deceased

Chapter 3: Evaluating Whether You Need a Lawyer

Going It Alone: Heading to Court Lawyer-Free

Understanding What a Lawyer Can Do for You

Recognizing When You May Need a Lawyer

When the defendant has a lawyer

When you sue a corporation or business

When you sue a government agency

Choosing the Right Lawyer for Your Situation

Smart ways to find good lawyers

Put it in writing: Protecting yourself with a retainer

Paying Up: Dealing with Lawyer Fees

Taking your case on a contingency agreement

Paying by the hour

Agreeing to a flat fee

Getting free legal services

Chapter 4: Classifying Your Claim: Figuring Out What Kind of Case You Have

Classifying Your Case

Breaking promises: Contract agreements

Causing harm: The law of torts

Determining Who’s Really at Fault

Contributory and comparative negligence

Understanding assumption of risk

Pointing the finger — last clear chance

Realizing Why Personal Injury Claims Aren’t Brought in Small Claims Court

Acting Fast: Time Is of the Essence

Time’s up! Checking out the statutes of limitations

Statutes of limitations in different states

Laches can lock your case out of court

Chapter 5: What’s the Damage: Understanding Different Types of Damages

Classifying Your Damage Claim

Making you whole: Compensatory damages in contract cases

Compensatory damages in negligence cases

Knowing the consequences: Collecting on consequential damages

When you’d rather be right than rich — nominal damages

Behaving badly can be costly — punitive damages

Liquid Gold: Dealing with Liquidated Damages

Agreeing ahead of time on liquidated damages

Differentiating between liquidated and unliquidated debts

Getting What’s Coming to You — And Then Some

Collecting interest and other additional monies

Expenses that aren’t really damages

Mitigation of damages: Reducing what the defendant owes you

Part II: Getting Ready to Go to Court

Chapter 6: Just the Facts, Jack: Gathering Your Information

Determining Who Your Defendant Is

Providing the defendant’s address

Identifying the defendant

Looking for the right business

Tracking an elusive defendant

Knowing your role: Recognizing who you are in court

Making a minor point: Cases involving minors

Bringing a Case to the Right Location

Gathering Your Facts

Making a list and checking it twice

Writing it down for the clerk

Chapter 7: Dealing with the Clerk

Understanding How and Why Clerks Rule the Legal World

Respecting the clerk’s knowledge

Getting off on the right foot with the clerk

Being prepared for meeting the clerk

Information Every Clerk Needs

Determining whether you want a jury trial

Say what? Arranging for an interpreter

Proclaiming yourself a senior citizen

Making the clerk aware if you have a disability

Pay Up: The Filing Fee

Paying the filing fee

Filing more than one case at a time

Chapter 8: Informing the Defendant About the Case

Serving Papers: The Service of Process

You’ve got mail: Delivering through the post

Making it personal: Handing it over via personal delivery

Substituted service: Giving it to someone else

Conspicuous service: Going to the tape

Self-service: Serving the defendant yourself

What to do if none of the other methods works

Preparing for Battle: What to Expect from the Defendant

Counterclaims: When the person you’re suing sues you

Counterclaims that exceed the court limits

When the person you’re suing blames someone else: Third-party actions

Cross-claims: When defendants point fingers at each other

Chapter 9: Looking at Your Options: Considering Alternatives to Trial

Understanding Alternate Dispute Resolution (ADR)

Meeting in the middle through mediation

Going through arbitration

Participating in a preliminary conference

Settling Rather Than Going to Trial

Deciding where to settle

Entering into an oral agreement

Spelling out the terms

Chapter 10: In Your Defense: Advice for the Defendant

Taking Action when Served with a Claim

Ignoring a summons at your peril

Refusing certified mail isn’t a good strategy

Pleading for mercy: Reading the plaintiff’s documents

Considering settlement

Preparing Your Response

Considering getting a lawyer

Preparing your answer

Going to Court

Keeping quiet as a trial strategy

Having your say

Part III: Presenting Your Case in Court

Chapter 11: Mastering Courtroom Etiquette

Mastering First Impressions in Court

Dressing for success: Your appearance at your appearance

Knowing what to expect when you show up

Minding your manners

Dealing with the Judge

Discovering who will hear your case

Requesting a judge

Asking for a judge to be removed

Getting Over the Courtroom Jitters

Going to court before you go to court

Protecting Your Case by Making a Record

Recognizing what constitutes a record

Going off the record

Getting a Postponement

Asking for an adjournment or continuance

Marking the case as final

Chapter 12: Providing the Proof You Need to Make Your Case

The Proof Is in the Pudding: Gathering Evidence

Carrying the burden of proof

Looking at direct versus circumstantial evidence

Knowing your enemy: Discovery of the facts

Subpoenaing information

Submitted for Your Approval: Presenting Evidence

Placing photographs into evidence

Putting documents into evidence

Submitting evidence when you’re the defendant

Chapter 13: Handling Live Witnesses Well

Choosing Not to Be Your Own Witness

Sending someone to court in your stead

Using a power of attorney

Calling the Defendant as Your Witness

Questioning Witnesses

Explaining question categories

Asking leading questions

Presenting Affidavits in Place of Live Witnesses

Impeaching a Witness

Bringing in an Expert Witness

Recognizing the economics of paying an expert

Establishing a witness as an expert

Keeping Your Cool When Your Witness is Lying

What to Do When Your Witness Doesn’t Show Up

Chapter 14: Sounding Like a Lawyer in the Courtroom

Understanding and Making Motions

Understanding what a motion is

Getting a flavor of pre-trial motions

Making motions during trial

Finishing up with a post-trial motion

Raising Objections

Looking at what an objection is

Raising common objections

Ruling on objections

Introducing Evidence

Handling hearsay

Looking at the best evidence rule

Understanding the parol evidence rule

Chapter 15: Understanding the Judge’s Decision

Receiving Your Judgment

Understanding a Loss

Getting the Brush-Off: Being Dismissed

Dealing with Defaults

Winning because the defendant never answered

Winning because the defendant didn’t respond to a motion

Seeing Inquest Judgments

Part IV: Dealing with Specific Problems

Chapter 16: Getting Hit Where You Live: Contract Cases Involving Your Home

Looking at Disputes between Landlords and Tenants

Suing over the security deposit

Getting your security deposit back

Keeping the security deposit as a landlord

Going to Court with the Condominium or Homeowner’s Association

Disagreements over Down Payments

Chapter 17: Getting the Business: Suing over Business Transactions

License to Sue: Cases Involving Unlicensed Businesses

Buyer Beware: The Downside to Hiring Unlicensed Businesses

Bringing a Case over a Car

Making lemonade: Using lemon laws

Seeking redress on repairs

Suing an Airline over Lost Luggage

Making the Moving Company Make Good

Dealing with damages

Escaping extra charges

Suing a Store for a Refund

Getting Your Just Deserts: Collecting Your Wages

Understanding Bailments

Types of bailment

When bailments occur

Chapter 18: Getting Personal: Suing Those Closest to You

Neither a Borrower nor a Lender Be

Breaking Up — and Sometimes Getting Together — Is Expensive to Do

Buying or borrowing together

Dealing with wedding-related lawsuits

Looking at Pet Lemon Laws

Hassling with the Health Club

Paying for Professional Services

Lawyers and accountants

Doctors

Chapter 19: Pardon My French: Understanding Tort Cases

Battling with the Neighbors

Tangling over trees

Fighting over fences

Disputing over driveways

Wrangling with Rover: Pet Disputes

Making a Case for Malpractice

Open wide! Dental malpractice

Taking the vet to court on Fido’s behalf

Turning the tables: Suing your lawyer

Suing over Property Damage

Causes of floods: Water mains and sewer backups

Damages: Proving the value of property

Chapter 20: Looking at Legal Issues in the Internet Age

Making Agreements on the Internet

Determining the contract terms

Entering an e-signature

Understanding arbitration clauses

Determining where the contract was performed

Determining whether you can sue

Finding out what state’s laws apply

Providing E-Evidence

Part V : Handling Post-Trial Issues

Chapter 21: Getting the Verdict and Collecting Your Judgment

Waiting for the Decision

Counting the Ways You Can Collect

Entering into a payment plan

Enforcing your judgment

Locating Assets

Tracking down information

Getting an information subpoena

Chapter 22: Appealing a Decision

Deciding to Appeal

Beating the time clock: Appealing on time

Determining if you have the right to appeal

Weighing the cost of an appeal

Appealing Even if You Win

Having Your Case Heard

Posting a bond or the judgment amount

Monitoring the status of an appeal

Choosing to use a lawyer

Looking at the possible results

Part VI : The Part of Tens

Chapter 23: Ten Ways to Improve Your Odds of Winning in Court

Remembering That Substantial Justice Is the Goal

Creating the Right Message

Preparing to Appeal

Choosing the Right Location

Reviewing Legislation

Treating the Clerk Kindly

Making Lists, Checking Them Twice

Looking Good in Court

Investigating the Facts

Establishing a Dollar Amount

Chapter 24: Ten Blunders to Avoid

Heading for Court Before Thinking about Alternatives

Failing to Prepare Adequately

Assuming the Judge Understands What You’re Talking About

Deciding against Using a Lawyer

Refusing to Listen

Not Making Things Clear

Lacking Vital Information about the Court

Having the Wrong Attitude

Underestimating Your Opponent

Making the Wrong Monetary Decisions

Chapter 24: Glossary

About the Author

Hon. Philip S. Straniere was elected to the New York City Civil Court in November 1996 from the Second Civil Court District on Staten Island, and was reelected in 2006. In 2004 he was named an Acting Justice of the New York State Supreme Court and Supervising Judge of Civil Court, Richmond County.

Straniere received his JD from New York University School of Law and his BA (Magna Cum Laude) and MA in history from Wagner College on Staten Island. Prior to going on the bench he was in private practice for more than 20 years.

He is currently an adjunct assistant professor at St. John’s University, where he has taught undergraduate law for over 30 years. He also taught at St. John’s University in the College of Business Administration before becoming a judge, and served as an administrative law judge for the New York City Board of Education Impartial Hearing Office, the Taxi and Limousine Commission, the Parking Violations Bureau, and the Environmental Control Board.

Known for using humor as well as references to popular culture in his decisions, Judge Straniere has been the subject of articles in the New York Times and The Wall Street Journal. In addition, his writing style has been the subject of an academic paper presented to the Mid-Atlantic Popular/American Culture Association in 2011.

He is married to Jennifer and has three children — Gregory, Amanda, and Nicholas.

Dedication

This book is dedicated to all the court clerks across the United States who every day answer the same questions over and over in an effort to make litigants’ encounters with the court system as easy as possible; to all attorneys who volunteer their time to serve as arbitrators and in other roles so that small claims courts can handle the volume of cases they deal with on a regular basis; and to all of the judges who are committed to ensuring that every litigant gets his or her day in court and who, after sitting in small claims court, will turn to colleagues, staff, family, and friends and say, “You won’t believe the case I just heard; you can’t make this stuff up.”

Author’s Acknowledgments

First I have to acknowledge my family. My wife, Jennifer, and my children, Gregory, Amanda, and Nicholas, who kept suggesting that I should write a book. Well, here it is. I was hoping it would be 101 Moose Jokes, but I guess a book that helps people understand small claims court will be just as good (and humorous).

Next on the list are Maria Colonna Emanuel and Helene Donlan Sacco, my current and my original court attorneys. Helene graduated from the world of small claims court to become a Family Court Judge and, like Maria, quickly gave up trying to eliminate the references to popular culture, theatre, and sports from my decisions.

To my secretaries, Traci Batiancela and Collette Curry, who come to me after reading a decision and let me know when something doesn’t make sense.

I also have to thank the gang I work with at 927 Castleton Avenue, Staten Island. They’re all dedicated public servants who spend their days trying to help people navigate the legal system so that the process is less intimidating.

I should also mention my law student intern, Tara Pistilli, who, after spending a summer checking out every state’s small claims law, has apparently decided to focus on patent law.

Also deserving mention are the individuals who have led the court system in New York during my time on the bench: Hon. Judith Kaye, Hon. Jonathan Lippman, Hon. Ann Pfau, Hon. Gail Prudenti, and my direct supervisor, Hon. Fern Fisher. Their commitment to making the legal process understandable to the general public, to simplifying forms, and to providing much-needed services to the unrepresented litigants who dominate my court has made New York a leader in ensuring that people, through the access to justice program, get both their day and their say in court.

Special mention has to be made of Joe Gebbia. Max Bialystock may be the “King of Broadway,” but Joe is the “King of Small Claims Court” in New York City. He established a training program for judges and arbitrators, in addition to getting a manual published that serves as a handy reference to arbitrators in New York City small claims court.

I really have to thank the people at Wiley who, even though they work for a company named after a coyote who gets hit in the head with Acme Anvils on a regular basis, helped me navigate the For Dummies process to completion: Sharon Perkins, Erin Mooney, Tracy Brown Hamilton, and Kathleen Dobie. And thanks also to my technical editor, Kari Race.

Finally, I want to thank my agent, Bookends, and my friend Dan Marotta, who mentioned one day that he had a friend who was looking for someone to write a book on small claims court.

Publisher’s Acknowledgments

We're proud of this book; please send us your comments at http://dummies.custhelp.com. For other comments, please contact our Customer Care Department within the U.S. at 877-762-2974, outside the U.S. at 317-572-3993, or fax 317-572-4002.

Some of the people who helped bring this book to market include the following:

Acquisitions, Editorial, and Media Development

Project Editor: Tracy Brown Hamilton

Acquisitions Editor: Erin Mooney

Assistant Editor: David Lutton

Editorial Program Coordinator: Joe Niesen

Technical Editor: Kari Race

Senior Editorial Manager: Jennifer Ehrlich

Editorial Manager: Carmen Krikorian

Editorial Assistant: Alexa Koschier

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Cover Photos: © Ricky Corey / iStockphoto.com

Composition Services

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Layout and Graphics: Carrie A. Cesavice, Jennifer Creasey, Joyce Haughey

Proofreaders: Glenn L. McMullen, Dwight Ramsey

Indexer: Infodex Indexing Services, Inc.

Special Help: Sharon Perkins

Publishing and Editorial for Consumer Dummies

Kathleen Nebenhaus, Vice President and Executive Publisher

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Publishing for Technology Dummies

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Composition Services

Debbie Stailey, Director of Composition Services

Introduction

If you’re reading this book, it’s a fair bet that you’re interested in suing somebody — or that somebody has decided to sue you. If you’re getting ready for your day in court, reading this book can dramatically increase your chances of winning by helping you prepare and avoid the pitfalls that derail so many small claims cases. Because I’m a judge, I approach your courtroom education from the other side of the bench, so I can tell you what you’re likely to do wrong — after all, I see it every day.

Going to small claims court isn’t like going to traffic court — you’re going to need to be better prepared than you would to fight a $100 speeding ticket. But it’s not rocket science, either. You don’t have to be the cousin of a lawyer or a part-time brain surgeon to find out how to gather information, present it in a logical way, and avoid irritating the court so much that your case gets thrown out because the judge doesn’t like you.

Be forewarned: I’m not giving you legal advice and I’m not guaranteeing that you’ll win your case. In some cases, I may even convince you to resolve your dispute outside of the courts. I’m simply trying to point out common errors parties on both sides of the litigation process make that prevent them from presenting their case in the best possible light. The task is further complicated by the fact that each state has slightly different rules for their small claims court, so it’s important that you check your local court and not just plunge ahead blindly like the proverbial bull in a china shop.

About This Book

This book will discuss everything you need to know about small claims court. Much of the information centers around the plaintiff — the person bringing the suit against someone else — but I also address issues that interest the defendant. Much of the information in this book applies to both parties.

You may be avoiding reading a book on this topic, even though you desperately need the information it contains, because you’re afraid it’s going to be

check.png Too dry and difficult to plow through in an afternoon

check.png Full of confusing jargon and information

check.png Boring beyond belief

I’ve tried to ensure that this book is none of these things, because I wouldn’t want to read it if it were, either. The court system is sometimes dry and dull enough on its own; my job in this book is to make the information both easily accessible and easily understandable — as well as a bit funny where possible. And believe me, court is often quite funny, whether intentionally or unintentionally so.

Conventions Used in This Book

It’s too cumbersome to use the term “he or she” all the time when talking about judges, defendants, and plaintiffs, so I alternate them with each chapter, using male pronouns in odd-numbered chapters and female pronouns in even-numbered chapters. Please note that throughout this book, the word guy is used in its most common meaning and refers to both men and women — sort of like actor in the movie industry.

New terms that may be unfamiliar to you are italicized the first time I use them; you can look them up in the glossary at the back of the book.

(Not So) Foolish Assumptions

I’m going out on a limb here and making some brazen assumptions about you. These are

check.png You’re either suing someone or being sued in small claims court.

check.png You have already been to small claims court and want to know what you did wrong so you can do it right next time.

check.png You have a secret interest in becoming a judge and trying small claims court cases.

If none of these describe you, you’re still more than welcome to read this book.

How This Book Is Organized

Books must be organized, or you’ll never find the information you need. This one is well organized into sensible parts, because I’m a judge and have a logical mind.

Part I: Making Your Big Problem a Small Claim

Going to small claims court always involves an issue you consider a big problem, or you wouldn’t go through all the trouble to do it. In this part, I help you determine whether your case belongs in small claims court in the first place. I also assist with the big decisions — such as how much money you’d like to get and whether you need a lawyer to help you get it — before you take the next step and file.

Part II: Getting Ready to Go to Court

Preparing to go to court can take a lot of prep work. If you don’t have all the paperwork and information you need, or if you don’t properly identify your opponent in court, you have no chance of winning. This part tells you what to do ahead of your court date.

Part III: Presenting Your Case in Court

Even if your notes and paperwork are in pristine order, you can blow your case by not presenting to the right person at the right time in the right way. In this part, I explain how to avoid making any missteps that will compromise your case.

Part IV: Dealing with Specific Problems

You may be hungry for more information about cases similar to yours. In this part, I describe some of the most common types of small claims cases and how to prepare specifically for them.

Part V: Handling Post-Trial Issues

When the verdict comes in, you may not like it. This part tells you what to do if you’re not happy with the judge’s decision. I also talk about what to do if you’re ecstatic with the decision but the defendant has disappeared into the sunset without paying you a dime of what she owes.

Part VI: The Part of Tens

If you’re into short sound bites, the Part of Tens chapters will appeal to you. They’re short, pithy, and they address two of the most important aspects of small claims court: ways to increase your chances of winning and common mistakes to avoid.

Icons Used in This Book

Obviously, I think every word in the book is essential to someone, or I wouldn’t include it. But some bits of information are more important than others, so I mark them with an icon that identifies them as something you should pay extra attention to.

remember.eps The “Remember” icon sits next to information I hope stays in your head long enough for you to get to the courtroom and use it.

tip.eps The “Tip” icon gives insider info it would take years to discover on your own. Because you probably don’t have time to become a judge before your case goes to court, I give you the tips I’ve gleaned.

warning_bomb.eps I’m only going to warn you if I think the information I’m giving is essential to not messing up your case.

technicalstuff.eps Because law can be a little complex, I use it occasionally to point out particularly technical details.

Where to Go from Here

For Dummies books are designed to be modular, which means you don’t have to read them cover-to-cover from the first page to the last . The information in each chapter is complete on its own, so if you’re going to court in an hour and just want to know what to wear, turn to Chapter 11 where I explain how your appearance can affect your case. If you’ve get a few weeks to prepare, take the time to read through a chapter, digest what’s in it, and then move on to the next, if you want. Or if you find the book so fascinating that you just can’t put it down, feel free to read through the entire thing in one sitting.

Part I

Making Your Big Problem a Small Claim

9781118424445-pp0101.eps

pt_webextra_bw.TIF Check out www.dummies.com/extras/filing&winningsmallclaims online for free information on important things to do before filing for court.

In this part . . .

check Get to know the specific rules of small claims court, how the system works and how to navigate it, and the key ways in which small claims court differs from other courts.

check Gain insight from a practicing judge on what types of complaints are best suited to be resolved in small claims court, and what alternatives exist outside of the court system.

check Get ready to represent yourself in small claims court by knowing how to select, work with, and pay for a lawyer to consult with you on preparing your case, should you choose to work with one.

check Recognize the various classifications of cases, from contract breaches to personal injuries, and know which kind of case you are dealing with and what you hope to gain from your day in court.

check Understand how to arrive at and justify monetary amounts when requesting compensation from a defendant, and familiarize yourself with the monetary rules of the court to better your chances of getting what is fair.

check Check out www.dummies.com/extras/filing&winningsmallclaims online for free information on important things to do before filing for court.

Chapter 1

Understanding the Ins and Outs of Small Claims Court

In This Chapter

arrow Making a decision to go to court

arrow Going to court without a lawyer

arrow Wrapping your head around the rules

arrow Preparing yourself for court

arrow Showing up to make your case

arrow Getting back to normal life post-court

Most people don’t really want to court. It’s stressful, it can be expensive, and it takes a big chunk of time out of what I assume for most of you is a busy enough schedule. Of course, there are exceptions: Lawyers go there because that’s their job, and people who love drama — and create lots of it in their daily lives — may find going to court to get people to listen to them somewhat addicting.

If you’re an average Joe or Jane, staying out of court probably seems like a better idea to you, until something happens that seems so unfair that you start considering going to court to get it resolved. If that happens, then this book can help you figure out the best way to go forward with the greatest shot of getting what you want out of small claims court.

In this chapter, I give you a quick overview of small claims court, why it exists, and a quick analysis of whether it’s where you should be to resolve your problem. The information here gives you an overview of the kinds of topics covered in greater detail throughout the book.

Starting Down the Road to Small Claims Court

Why are you going, or considering going, to small claims court? Everyone has different reasons, but usually frustration, aggravation, and a sense of outrage at the way a business or personal transaction has turned out is the impetus.

If you could solve things in another way, you probably would. Many litigants say they end up in small claims court because the person they’re having a problem with doesn’t seem to be listening to them or responding to what’s an important issue to them. Some of these situations may be better resolved outside of the court system through mediation or conciliation.

Let’s say you threw a garden party in an effort to spiff up your social standing in your neighborhood — you know, tea, crumpets, watercress sandwiches, and the like. You decked yourself out in your white linen suit. You were strolling your garden, greeting neighbors, when the dog next door, Tiny, greeted you by putting his muddy paws on your suit and licking your face.

Although everyone had a good laugh at your expense and the incident won first prize in a funniest video contest, your neighbor refused your request that he pay for the dry cleaning bill for your suit. Not only did he refuse, but he insists you pay the veterinarian’s bill because his dog is allergic to linen.

Rather than challenge your neighbor to a duel, you decide to take a more civilized approach and call your lawyer, who tells you that the legal fees involved would be more than any money you may recover. You call several other lawyers and get the same response.

Well, don’t despair. Throw your shoulders back, lift your head up high, and put a smile on your face. There is hope. You have a remedy tailor-made (pardon the expression) that suits situations like yours. It’s called small claims court.

Small claims court is part of the court system available in every state. It’s a court where you don’t need a lawyer, where the rules of evidence are not strictly applied, and where the goal is to obtain “substantial justice” for the parties in an expeditious manner. Substantial justice is explained in Chapter 2.

warning_bomb.eps But don’t run out and file just yet. Because there are 51 different small claims courts in the United States — the 50 states and the District of Columbia — it’s important that you check with your local court system before you start your lawsuit, because not every state permits the same kind of case to be brought in small claims court.

Doing It Without a Net — Or a Lawyer

A book such as this one is very handy to the average citizen who has not passed the bar, because small claims court is a court where lawyers are not only not required but in some places actually prohibited. Yes, you read that correctly: Some courts actually prohibit lawyers in small claims court, which makes it a unique place ripe for human error.

Did you ever hear the saying, “A person who represents himself has a fool for an attorney?” Or is it, “A person who represents himself has a fool for a client?” The point is that someone going to court without legal representation is the sort of thing you’ve always heard is a really bad idea. The people who get most upset about self-representation are called lawyers or attorneys or counselors.

Small claims courts operate on the assumption that you don’t need a lawyer in order to have your case presented easily and decided fairly. Because lawyers have chosen the law as a profession, they generally don’t like programs where legal services are available to just anyone — and at no cost or very little. You have a job, right? And you wouldn’t be happy if someone found a method of doing your job without having to pay you for it, so too lawyers are often skeptical of ideas that reduce potential income sources.

Well, if lawyers control state legislatures — which may actually be a myth — how did we end up with small claims courts all over the country? It’s really very simple. It’s called small claims court for a reason. The amount of money you can sue for is limited; In fact, in most places, it’s downright puny. Each state has set a limit as to what is the most money you can sue for in small claims court.

remember.eps The cost of using a lawyer to represent you on your small claims court case in all likelihood would exceed the amount of money you potentially can recover, making it really hard to hire counsel. This makes the lawyers feel much better about letting you represent yourself.

Don’t think that my intent here is to bash lawyers. Small claims court can’t function without the thousands of attorneys who volunteer their time to serve as arbitrators in small claims courts throughout the United States. The court system couldn’t handle all of the cases brought in small claims court each year in a timely manner if every lawsuit had to be heard by a judge. It would be remiss of me not to recognize the contribution of members of the bar in every jurisdiction who help make the American court system function.

That being the case, if at times throughout this book, it seems as if I’m throwing lawyers under the bus, I ask forgiveness and I promise not to shift into reverse after they’re on the ground. To find out more about how lawyers fit into the small claims court system, check out Chapter 3.



Understanding Why Small Claims Court Rules Seem So Confusing

Although you may not need a lawyer to use small claims court, you may need one to ferret out your state’s various rules and regulations.

The information you need about the procedures of small claims court are contained in your state’s statutes. You may not be able to find it conveniently located in just one section of your state’s law — you may have to skip around to various statutes to figure out what court to file in, what procedures to follow, and what rules of evidence are used in small claims court. Sometimes the rules may also be contained in some local regulation as well as in the state law.

Even after you find the information, understanding the statutes may require a lawyer or at least a reference to a legal dictionary, as many states still use terms that have been applied since colonial times from common law rather than plain language to describe the process and your rights.

tip.eps Check whether your court system or the state bar association has some user-friendly pamphlets or websites that explain how small claims court operates in your area.

Getting the go signal for small claims court

Because every state is different, I can only generalize about your state’s rules about small claims court. But generally, small claims court maybe an option for you if you meet three criteria:

check.png You’re looking for a limited amount of money.

check.png The transaction arose locally rather than across county or state lines.

check.png The potential defendant is a readily identifiable individual or business.

See Chapter 2 for all the details about determining whether you belong in small claims court, or whether just knocking on your neighbor’s door and apologizing for all the scenes you caused in the last month may be more appropriate.

Being rejected by the small claims system

Sometimes it’s evident from the start that you and small claims court aren’t a match made in heaven. For example, you don’t belong in small claims court if:

check.png You want a remedy or result other than money, such as forcing someone to meet the terms of a contract or stopping your neighbor from doing something that really annoys you.

check.png You’re looking to win enough money from the defendant to retire to a tropical paradise and never have to handle money again in your life.

check.png You want to sue so many people that you need a sports arena to seat them all and interpreters from every member nation of the UN.

Preparing for Your Big Day

One thing that becomes apparent as you read this book, which I’m assuming that you find it so informative and entertaining that you read it from cover to cover and give as a holiday gift to all your friends and some of your enemies, is that preparation is the key to success.

Preparation for small claims court means:

check.png Knowing what kind of claim you have. Do you have a contract claim, property damage claim, or something else? (Chapter 4 can help you figure it out.)

check.png Figuring out how much money to seek and properly classifying your damage claim. (Chapter 5 explains money matters.)

check.png Determining who you’re planning to sue: Is it a person or a business? If the defendant is a business, you need to know whether it’s a sole proprietorship, a partnership, or a corporation. Chapter 6 tells you how to ferret out this information.

check.png Discovering the procedures used in your local court. (The clerk has all the answers; find out how to work with the clerk in Chapter 7.)

check.png Planning what you intend to do when you get to court. (Chapter 11 can help you avoid making a fool of yourself in court.)

check.png Deciding how to present your case. (Turn to Chapter 12 for tips on this.)



Showing Up in Court

Woody Allen once said something to the effect that 80 percent of success is just showing up. That may be good in some situations, but in small claims court, just showing up will be a disaster for you — although not showing up is worse.

Even if you’re prepared for your case, you still have to be prepared for court. This means being dressed for the occasion and treating it as an important event. You also have to be prepared to deal with the clerks of the court, the courtroom staff, your opponent, and the judge.

warning_bomb.eps A confrontational attitude with everyone you meet along the way in your quest for justice is a good way to undo all of the preparation you did for your day in court. Let Chapters 11 and 14 help you win your case by not losing your case through your own incorrect actions.

Living Through the Aftermath

One thing that people who aren’t familiar with the legal process discover quickly is that there is a difference between winning a case and collecting your money. I hope this book sets you on the path to victory. But even if you win your case, you still have to figure out how to collect a money judgment in your favor.



Deciding to settle your case for less than you want in order to insure prompt payment is an option to explore. Chapter 21 helps you figure out how to get what you have coming to you. It also explains options for what you can do if you’re not paid and who can help you enforce your judgment using the legal process.

In every small claims trial, someone wins and someone loses. What to do if you’re not satisfied with the court’s determination is something to think about almost before you start your case. Chapter 22 helps you make decisions about what to do if the verdict doesn’t go your way. It helps you prepare for the possibility of losing and tells you how to proceed to either appeal a decision or to respond to an appeal.