If you ever get ripped off for a few thousand dollars, you might not be able to – or need to – hire an attorney. You should consider suing in small claims court. Here’s how that works.
It varies from state to state but most courts have a Small Claims division. Litigants can file a claim with the court and choose to have their claim heard using a faster and simpler process. These cases usually do resolve more quickly and you can do it without an attorney. In fact, most systems are designed to operate without attorneys working with the litigants. In exchange for the simpler process, you are capped on how much money you can ask for and you usually can’t appeal.
Let’s go with a simple example. A guy sells you a car for $1,000. You pay him and he hands you a title and the keys. You go to your state’s DMV or equivalent and they tell you that the title has been forged and the car was stolen. A few hours later, the police take the car and tell you to solve your own problems with the seller. This case is too small to hire an attorney – one would cost more than you could possibly win in court.
Here, you are suing an individual. Be aware that in some courts, corporations are harder to sue in small claims court. Sometimes, the courts stick to the “no attorneys” rule so strictly that when a corporation’s attorney shows up, they kick the case immediately to regular court. And a corporation usually has to have an attorney represent it since it is not a person – regardless of what the Supreme Court says about campaign finance law. The only way corporations can get around this rule is if the court allows them to designate a representative to stand in for them and that will depend on the rules in that state.
Be aware that most small claims courts allow a defendant who wants to, to “remove” the case from small claims and have it heard in regular court. If that happens, you lose the rules of small claims and all bets are off on attorneys. The good news is that the jurisdictional limit will probably be removed as well and if you were entitled to more, you could amend your complaint and ask for it. But that’s another story.
Getting back to our example. Go to the local court and ask about filing a small claim. If you don’t know where to go, Google [county] and “small claims” with your county in the search. Your court will probably pop up. Go to the court, where you will fill out an affidavit or claim form with your information, the defendant’s information and a description of your claim. This means you will need to have this information when you walk in the door. You will also have to pay a filing fee but this fee might be recoverable if you win.
The court will probably take care of serving the complaint for you – and again, you will probably have to pay for that, too. This cost may also be recoverable.
As for the description of your claim, the court is not expecting you to know the law or to file a pleading worthy of Clarence Darrow. Just state clearly and plainly why you are entitled to money. “Seller sold me a car. The car was stolen. He did not own it. The car has now been taken by the police. I want my $1,000 back, along with my court costs and fees. Steve Lehto says this is a breach of warranty of title.” That last sentence is a winner but it is optional.
While the procedures are modified in small claims, the law is not. When I tell people they cannot sue for something – like when they bought a car ‘as-is’ and it blew up later – they often ask, “Could I sue in small claims?” as if the laws are not as important there. If you couldn’t sue in regular court because of the law, you cannot sue in small claims. The same laws apply.
Some courts have a mediation process and will ask you, and the defendant, to come in and meet with a mediator. Go and try to work it out. Sometimes the mediator will try to cut the baby in half but the mediator often knows what is likely going to happen in that court. If you can work it out, great. If not, at least make it look like you tried. I know because I have acted as a mediator in these settings and got to see a couple of dozen small claims cases before they went before a judge. And what I saw frightens me to this day. Again, another story.
When your big day comes, be prepared. Make copies of all of your documents. When you hand one to the court, keep one for yourself and hand one to your opponent. If you have a lot of documents, this will save a ton of time. There’s nothing worse than watching the parties and the judge hand one piece of paper back and forth and discuss wording etc. Have pictures? Get them printed (yes, those pics on your phone can be printed into real life things people can hold and look at). Bring copies.
Go to court early if you can and watch a few other cases. If you are so inclined, find out what day they hear these cases and go the week before your hearing and watch the court in action. You will get a feel for what the judge is looking for, what works and what does not.
I often tell people that small claims is often “just like People’s Court.” But without the television cameras. But in reality, every judge and every court is different.
Again, remember that the judge is not expecting you to know the law. But you better know your facts. Have them outlined and stick to them. That is, THE FACTS. Don’t spend a lot of time on how you feel or what you think the defendant was trying to do. Keep it short and FACTUAL. And have the documents ready to prove your case. In the example, a certified title history from the DMV and a police report would do it. Be businesslike and act professional. Stay calm and don’t argue with the court or your opponent. Take turns when talking and so on. The court will appreciate it if you play nice.
There are other cases where you might need to bring witnesses. Fact witnesses are those who saw something happen and can tell the court about it. Find out in advance if your witnesses will come to court with you. And you might need expert witnesses. Suppose you are suing a mechanic for doing a shoddy repair. You may need another mechanic to testify and say that the first mechanic did, indeed, do a shoddy repair. Again, make sure that the expert is available and will come.
Because of the nature of the court, small claims often operates in a streamlined fashion. The case starts at 10 a.m. and is over at 10:15. So there isn’t a lot of room for adjournments and so on. If you go, be prepared to finish. Because once it’s over – IT’S OVER. This is both good and bad. There are often no appeals but it also means that if you aren’t prepared, you just lose.
Let’s suppose you win. You will get a Judgment and yes, that is the preferred spelling with just the one “e.” Collecting might be tricky. A defendant usually gets some time – 21 days or so – to pay a judgment before anything else can happen. When that time runs out, you have to find out what else you can do in your state. Some states will allow you to notify the driver’s license people and they can block a person from renewing a license if they have an outstanding judgment against them. Some states will let you drag a person in for a creditor’s exam and grill them under oath about their assets.
I once noticed a creditor’s exam for a guy I had a judgment against and he didn’t show. The exams are held at the court and the court issued a bench warrant for his arrest. A few weeks later he was stopped on a routine traffic matter on a Friday afternoon and the warrant popped up. He spent the weekend in jail.
So, when you are considering taking someone to small claims, ask yourself if the person is collectible. There is nothing worse than winning an uncollectible judgment. I’ve gotten a few in my career and other than looking pretty, they do nothing for anyone.
And yes, once again I am giving advice on how you can get through life without an attorney. But this is something I often advise people to do. If you have a valid claim that is not large enough to merit the hiring of an attorney, consider taking it to small claims.
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Steve Lehto has been practicing law for 23 years, almost exclusively in consumer protection and Michigan lemon law. He wrote The Lemon Law Bible and Chrysler’s Turbine Car: The Rise and Fall of Detroit’s Coolest Creation.
This website may supply general information about the law but it is for informational purposes only. This does not create an attorney-client relationship and is not meant to constitute legal advice, so the good news is we’re not billing you by the hour for reading this. The bad news is that you shouldn’t act upon any of the information without consulting a qualified professional attorney who will, probably, bill you by the hour.
Photo Credit: AP