Overview

Introduction

Definitions

Jurisdiction

Before the Hearing

Overview

Some cases are of such small magnitude in terms of monetary damages that it is not feasible to hire an attorney to present the claim in court. Each of the City Courts and Justice Courts in the state has a small claims division that is specifically designed to deal with these types of claims. The technical rules of procedure do not apply to small claims court and the process is greatly simplified to allow claimants to pursue justice without the necessity of hiring an attorney.

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Introduction

Occasions may arise when a legal claim simply cannot be handled  economically by an attorney. Perhaps the amount of money in dispute is too small to justify paying an attorney to handle it. But rather than being forced to abandon your claim because it does not make sense to pay for a lawyer, you can prosecute your case yourself. In these cases you have a judicial forum that you can use to resolve the controversy. 

"Small claims" courts exist in every state to decide cases involving a small amount of money or other "minor" controversies. Sometimes attorneys are not allowed or are discouraged from participating. The judge often runs the proceedings in an informal manner and is not bound by strict rules of legal procedure. Often the goal is to achieve "substantial justice". You present your case, the defendant presents a defense to your case and the judge decides who should prevail. 

This page answers some frequently asked questions by non-lawyers contemplating filing a suit in small claims court. It is not a difficult process and you do not have to do it completely alone. Your attorney can help you prepare for your day in small claims court and answer any other questions you might have.

In addition, many small claims courts have pamphlets available that further describe the process of prosecuting a claim in small claims court and, more often than not, the judges and clerks will be very helpful to a claimant in articulating their claim.

Definitions

answer – the defendant’s statement that explains why the defendant does not owe the plaintiff money. It is sent to the small claims court in response to the plaintiff’s complaint.

amendment –a  change made to the complaint after it has been filed.

appeal – request by the losing party to have a higher court review the case.

appearance date – day and time the case will be heard by the judge.

attachment – process of seizing the property of the defendant to pay the judgment obtained by the plaintiff.

bailiff – person who keeps order in the small claims courtroom.

case number – the number assigned to your case by the clerk or judge of the small claims court.

clerk of the court – person who handles the paperwork of the court, a role fulfilled by the judge or the judge's secretary in court's that do not have the position of clerk.

collection – the process of getting the losing party to pay the amount of money ordered by the court.

continuance – an adjournment of the court date, additional time granted by the judge to the defendant or plaintiff after the appearance date has been set.

complaint – statement by the plaintiff setting out the facts that entitle him or her to recover money from the defendant.

counterclaim – statement by the defendant that sets out facts that tend to prove that the plaintiff owes the defendant money and establishes additional issues for the small claims court to decide.

default judgment – a judgment for the plaintiff in a case where the defendant did not appear to contest the lawsuit.

defendant – the person who is being sued by the plaintiff.

dismissal – if the plaintiff is not ready to present evidence at the hearing, the claim will be disallowed.

docket – the list of cases to be heard on a specific day.

evidence – the documents (documentary evidence) and oral testimony (testimonial evidence) that tends to prove the plaintiff’s case or the defendant’s defense.

execution – enforcement of the terms of the judgment.

fees and costs – the amount of money the plaintiff and defendant must pay to the court to have the case heard

filing – process of initiating the case by depositing with the court clerk the complaint and summons, if required, and any required fees.

judgment – the final order of the judge settling the case in favor of the plaintiff or the defendant.

jurisdiction – power of the small claims court to hear and decide the case (the small claims court can only hear and decide those cases that arise in the court’s geographic area, are limited to recovery of money that does not exceed the amount set by statute, and where the defendant has been served with notice of the case).

hearing – another name for the small claims court trial.

magistrate (hearing officer, justice of the peace, judge, commissioner) – person who will hear the evidence and decide the case in the small claims court.

motion – a request for the court to perform some act.

motion to stay execution of judgment – request that the defendant be given some amount of time in which to pay the judgment to the plaintiff.

motion to vacate judgment – request by the losing defendant to have the judgment set aside and not enforced.

plaintiff – the person who initiates the case in small claims court.

prosecution of the case – the plaintiff must file the case, appear at the hearing and present evidence to prove the case – failure to prosecute the case will result in the case being dismissed.

service of process – letter or document mailed or hand-delivered to the defendant that informs the defendant that a small claims court case has been instituted against him or her.

stipulation – agreement by the plaintiff and the defendant.

subpoena – order by the court for a witness to appear.

summons – letter from the small claims court that tells the defendant when and where to appear to try the case.

Jurisdiction

Jurisdiction is the term used for the court’s authority to hear a case and decide which party should prevail. There are three jurisdictional issues that must by met for the small claims court to have jurisdiction over your case. Your must satisfy the jurisdictional requirements of geography, amount claimed and notice to the defendant.

The court system is divided into geographical areas that determine which court has jurisdiction over your case. The clerk of the court can tell you what court would be appropriate based on your residence, the residence of the defendant and the place the actions leading to the lawsuit happened.

Small claims courts can only hear cases involving a certain amount of money that is established by the law. In some states the amount in controversy between the parties can be as much as $5,000 or as little as $500. The small claims court cannot grant any judgment in an amount greater than the jurisdictional amount. You can still use the small claims court even if the defendant owes you more money than the jurisdictional amount if you agree to limit your claim to the amount the court can award. you will not be able to recover the excess amount ever if you use the small claims court.

The defendant must have been notified of the lawsuit before the court has jurisdiction over him or her. The defendant must live in the area covered by the small claims court or have done something in the court’s jurisdictional area for the court to have authority to force the defendant to abide by its decision.

In most states the small claims court is designed to resolve a simple conflict between two people in a quick and inexpensive manner. Small claims courts usually are limited to deciding cases that can be resolved with payment of money by one party to the other. In some states, certain types of actions are specifically excluded from the small claims court’s jurisdiction because the evidence necessary to prove the case is not the simple evidence the court was designed to hear. The clerk of the court or your attorney can tell you whether your case is one that the small claims court can decide. Certain types of cases might also be suitable for what is called alternative dispute resolution.

Some problems arise repeatedly and special procedures have been established to handle them with hearing officers specially trained in that area. If your complaint against the defendant is based on a landlord/tenant relationship (or you and the defendant are neighbors or the defendant is a retail merchant) there may be a separate dispute resolution processes you can use. Ask the clerk of the court or your attorney about an alternative to the small claims court.

You generally can sue a corporation in small claims court. You will need to find out the name and address of the corporation’s registered agent for the service of process. The state Secretary of State can tell you who is the corporation’s agent, or in some cases accept the complaint on behalf of the corporation.

The corporation is entitled (and may be required) to be represented by an attorney in small claims court even though an individual may not be. The informal rules of evidence are still applied.

Before The Hearing

Before a court can hear and decide your case, it must have jurisdiction. You may have a choice of courts depending on the facts of your case and the type of case it is. Each court has geographic boundaries that determine its jurisdiction. You will be able to file your case with the court that covers the area where the actions giving rise to your case occurred. For example, where a traffic accident occurred or where a lease or contract was performed. You may also choose to file your case in the court that has geographic jurisdiction over the area where the defendant resides. The clerk of the court can help you decide which court (or courts) have jurisdiction to hear your case.

If you initially file your claim in the wrong court (i.e., a court that lacks jurisdiction over your cause), your case will be dismissed and you will have to file it in the correct court to have it heard.

In order to file your case, the clerk of the small claims court generally will give you a form for filing your case. This form is the complaint. You will have to fill in the blanks on the form and pay the filing fee to the clerk to start the prosecution of your case.

When you file your case the clerk of the court will assign it a number. Use the number each time you contact the court whether by telephone or mail.

The small claims complaint form identifies the court, the plaintiff and the defendant and sets out the plaintiff’s claim against the defendant in a simple statement.

What happens next?

The complaint must be served on the defendant so he or she will know the suit has been filed. The complaint informs the defendant what the plaintiff wants and why the plaintiff thinks the defendant owes it. Each state has different rules on how the defendant must be served for the court to have jurisdiction over the defendant.

The clerk of the court will explain which procedures are available to you (for example: personal service, service by mail or service by publication), and in some instances, the clerk or court will effect service on the defendant directly.

What is personal service?

Personal service on the defendant is one way to inform the defendant of the lawsuit. Personal service means that the defendant was handed, in person, a copy of the complaint. There are requirements for who can serve the complaint on the defendant. In some states you as the plaintiff and members of your family cannot serve the defendant personally. This restriction is intended to reduce the opportunities for conflict between the plaintiff and the defendant. Deputy sheriffs and professional process servers can be employed to serve the complaint on the defendant. In some states the filing fee includes the fee for having the complaint served by a deputy sheriff or employee of the court.

What is service by mail?

The complaint can in some cases be sent to the defendant by certified or registered mail, with a return receipt to show that the defendant received the complaint. This method of service is common in small claims court.

If this is the procedure called for by the court or clerk, you will need to send the notification by certified mail, return receipt requested, restricted delivery. Restricted delivery means that only the defendant can sign for the letter and is conclusive proof that the notice has been received by the defendant. 

Usually the receipt is sent directly to the small claims court so they can keep track of whether the defendant has been served properly. You should call the small claims court about a week after the letter is mailed to check whether or not the defendant received it.

Each state has different rules on the service of process. The clerk or judge of the small claims court will tell you how to proceed when you file your complaint. You may be responsible for serving the defendant or the court may do it for you for a fee.

If the defendant does not sign for the letter there has been no service of process on the defendant and the court has failed to gain jurisdiction over him or her.

If the defendant refuses to accept the certified mail letter, you generally will have to attempt to serve the defendant personally. You may have to employ a professional process server at this point to make sure that the defendant is properly served. You would have to pay for the professional process server but in many states this expense is recoverable from the defendant as part of the costs of the case that can be awarded to you if you win.

If a defendant cannot be served by mail or personal service, it is possible that the court would order service by publication. Service by publication means that the defendant is notified of the lawsuit by a legal notice published in the newspaper. This method of service is rare in small claims courts.

After the complaint has been filed, the defendant will have an opportunity to file an answer to your complaint. The answer is a simple statement of why the defendant feels he or she does not owe you the money you claim. The defendant may also file a counter-claim at this time.

The time limit for filing the defendant’s answer varies from state to state. The clerk of the court will tell you what time limits apply. You should receive a copy of the defendant’s answer after it is file with the court.

The defendant’s counter-claim is a statement that the plaintiff in fact owes the defendant money arising out of the same set of facts that the plaintiff alleges created a claim against the defendant. If the plaintiff had not instituted a small claims court action against the defendant first, the defendant could have filed the counter-claim as a lawsuit against the plaintiff.

The clerk of the court or your attorney can tell you what time limit applies to the defendant’s counter-claim. The defendant may be able to file a counter-claim as late as two or three days before the hearing.

If the counter-claim alleges that the plaintiff owes the defendant more money than the jurisdictional amount of the small claims court, the case will be transferred out of the small claims court. Otherwise the counter-claim just raises additional issues between the defendant and the plaintiff for the judge to decide, and against which you will have to be ready to defend yourself.

If the court determines that the amount claimed in the counter-claim was designed only to get the case transferred out of the small claims court it may ignore the counter-claim and still hear and decide the case.

If the case is transferred from small claims court, the rules of evidence and procedure of the court to which the case is transferred will govern the case. You will no longer be able to use the simplified and informal procedure of the small claims court. The defendant will be entitled to have an attorney represent him, and you may have to employ an attorney to represent your interests.

You may withdraw your complaint after it has been filed, but the court will still have jurisdiction based on any counter-claim to which you will have to respond.

After the defendant has filed an answer, the clerk of the court will set the case for hearing. The clerk will notify you and the defendant of the time and place the case will be heard.

If you have special needs, such as a translator, let the clerk of the court know about them. Usually some arrangements can be made so that your case can be heard and decided in a manner fair to both you and the defendant. Translator services and Saturday or evening court dates are available in many states.

You may amend your complaint, usually up to the time of the hearing, to reflect changed circumstances, such as the defendant having paid you some money. If you want to add new claims against the defendant you must file the amendment far enough before the hearing date to allow the defendant time to prepare a defense. The clerk of the court can tell you the appropriate time limits for the type of amendment you want to make.

To get ready for trial, you must decide how to prove your case. First you must gather your evidence and then determine how best to present it to convince the judge that the defendant owes you the money you claim.

You can present documentary evidence, such as signed contracts or receipts, that shows why you think the defendant owes you money. You can also bring people with you who have personal knowledge of the dispute between you and the defendant who can testify as to what happened.

You can consult an attorney to help you prepare your case and coach you on how to present it, but in many small claims courts you cannot be represented by a lawyer. In these jurisdictions, if you want to use a lawyer, you cannot use the small claims court.

Only people who have personal knowledge of what caused the dispute between you and the defendant are qualified to testify.

When your evidence is ready, you need to practice the presentation of your case. Practice in front of a mirror, practice in front of your family, practice in front of strangers on the street. Practice until you are completely comfortable with the facts of the case and the evidence you intend to present. Most people do not have experience in a courtroom presenting a case to a judge and so being nervous is to be expected. Practice will reduce your nervousness when you are in front of the judge in small claims court.

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