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How to sue in small claims court

[This section contributed by Bill Blankstyn.]

Is Your Case Appropriate for Small Claims Court?

In the United States, small claims courts primarily resolve relatively small monetary disputes, usually between $2,500 and $7,500, depending on the state. Since by law you can claim damages of up to $1,500 per junk fax, small claims courts are an ideal venue for protesting unwanted faxes and collecting for the damages they cause you or your business.

Filing a small claims lawsuit

To start a lawsuit in a small claims court, go to the proper court in your city or county and ask the Clerk for a "Summons and Complaint" form (the name may vary from location to location).

• Click here for California forms (Santa Clara County info and forms)

• Click here for Arizona forms

• Other states, click here.

A small claims lawsuit application typically has the following parts:

1. Parties to the suit.
   
   Your name and the name of the person or company you are suing.

Fill in your name and address on the line marked “Plaintiff’. On the line marked “Defendant”, write the name and address of the person of business you are suing. 

Important: The name of the person or business you are suing must be its exact legal name. If you make a mistake and list the wrong name, your case could be dismissed at any point in the proceedings. Do not use abbreviations, initials or nicknames to describe the person or business you are suing. If you leave out any part of the name, your claim could be dismissed based on a technicality.  For example, Acme, Inc., Acme Corporation, Acme L.L.C. are not the same companies.

2. Nature of the complaint.

In the next part of the complaint, explain briefly why the defendant owes you money and in the proper location on the form indicate the amount of money you believe you should receive when your lawsuit is successful. This amount should include any out-of-pocket expenses or any money you lost because of what happened.

3. Signature. At the bottom of the complaint, sign your name on the line marked “Plaintiff’.

Getting Your Small Claims Lawsuit Served

After a lawsuit is filed, it must then be "served" on the plaintiff. This means that the person you are suing will be legally informed that a lawsuit has been filed against him (or her). Generally speaking for small claims lawsuits, service is done by a private process server. Generally speaking, you will be billed by the process server directly.

For example, in Arizona Small Claims Court, service can be  done by certified mail, restricted delivery, return receipt requested. The plaintiff is responsible for  mailing the complaint to the defendant once it has been filed in the proper court.

The fee may vary in each case.

After a few days, check with the Civil Clerk to ask if service was made. Once the defendant is served, your small claims suit is officially underway.

What Happens After the Complaint is Served?

Generally, the defendant has twenty (20) days to file an answer; thirty (30) days if he or she resides out-of-state.

During this waiting period, several things may happen:

• If the person pays you the money you asked for in the suit after receiving your Complaint, just notify the court in writing that your case has been settled. A Dismissal form is available for this purpose.

• If no answer is filed when it is due, ask the Clerk at the Small Claims Court when the answer is due, and for a Notice of Default. The Notice of Default allows you to ask the Court for a Judgment. In other words, you win.

• If a counterclaim is filed by the defendant with his or her answer, you have 20 days to file an answer to the counterclaim. If you do not file a response to the counterclaim within 20 you will be defaulted. In other words, your case is dismissed.

How to Prepare Your Small Claims Case

It's usually what you bring with you to court to back up your story -- not what you say -- that determines whether you'll win or lose. Because of this, it is of the utmost importance that you plan your case and organize your evidence in advance.

This makes sense if you understand that the judge has no idea who you are and whether your oral testimony is reliable. After all, your adversary is likely to claim that the "true story" is extremely different from your version.

Offers of Judgment and Offers of Settlement

An “offer of judgment” is a written offer made by a defendant to a plaintiff proposing to settle a case.  If you receive an offer of settlement that is even marginally reasonable, consider it seriously. You may lose money if you refuse the offer of judgment and the outcome of trial is less favorable to you than the offer.

When thinking about what sort of settlement you would accept…. be realistic about what is likely to happen if your case goes to trial. Ask yourself questions such as:

“What are my chances of winning?”

“How much money am I likely to receive?”

“How much time and energy will ft take to prepare for trial and how will that expenditure of time and energy affect my business or other activities?”

“How long will the trial take and to what extent will it disrupt my life?

“Will I have a hard time collecting the judg­ment if I win?”

Pre-trial Settlement Conferences

Between the time of filing initial pleadings and trial a judge may conduct one or more “pre-trial conferences.  For example, a judge may use a pre­trial conference to schedule hearings on motions. Or the judge may try to shorten the trial by getting you and your adversary to stipulate (agree) to particular facts. However, probably the most important reason that judges schedule pre-trial conferences is to facilitate settlements.

Pre-trial Motions

A motion is a request, usually in writing, for a judge to make an order, decision or ruling with regard to a legal issue that arises in the course of a lawsuit. The issue may simply be a scheduling matter, such as in a motion to request a continuance. Or, the issues may be complex and cut to the very heart of the case, such as a motion for summary judgment which is a request for the judge to make a final judgment without going to trial because affidavits establish that the facts are not in dispute.

Before making a written motion or responding to one made by your adversary, try to informally reach an agreement. For example, if you need to postpone a deadline, you might ask your adversary to agree to a "continuance". If your adversary agrees, you can prepare a document called a “Stipulation to Continue [insert name of what’s been continued].”

Ask the court clerk and check the rules in your court for any special procedures for preparing and filing such a stipulation. Typically, both you and your adversary must sign the stipulation and file it with the court. If both sides agree, the court will probably grant the continuance without requiring either you or your adversary to appear in court. The clerk will then schedule the matter for a later date, as agreed, and notify the parties of the new date and time.

Making and responding to motions can be confusing, but persevere. If you believe there are issues you can or should resolve before trial, you may benefit from filing a motion. If your adversary files a motion, review and analyze the facts and legal issues in the motion and any documents attached to it. Go over them with your legal coach, if you have one. Then, carefully provide enough factual and legal analysis to formulate reasoned responses and present your position to the court in a written response and orally at the court hearing, if one occurs.

Scheduling a Court Hearing on a Pre-Trial Motion

Some motions are made, responded to and ruled on by the judge in writing; there is  no court hearing. In some courts, motions can be argued on telephone conference calls. But many times, a party bringing a motion must obtain a court hearing date for the judge to consider and rule on a motion. The court clerk can tell you how to obtain a hearing date in your court. In many places, you schedule a date by phoning the court. The clerk will assign you a hearing time and enter your case on the court docket (calendar) for that day.

When you phone the clerk, be prepared to give your case name and number, the type of motion and an approximate time you want to schedule the hearing (if you have a choice). Your motion must tell the court exactly what you want and why you want it. Be prepared to put your request and reasoning in the form the court requires and expects.

How a motion hearing works

A good way to get a feel for how argue a "motion" is to go sit in on a motion in the court where you will argue before your hearing. Note where people sit and stand, where the microphones are, how much time the judge seems to spend with people in their various roles and what types of questions the judge asks. Also, use any time you have before your hearing begins to review your own notes and observe carefully what the judge seems to expect from others arguing before him or her.

Though a hearing is not a trial, you should observe the same formalities when arguing a motion. Stand when you make your presentation, and address the judge as "Your Honor". Don’t talk directly to or argue with your adversary (or his or her lawyer).

At the end of the hearing, the judge will often make a final decision, either orally or in writing. Other times, the judge may decide to take the matter "under submission". That means the judge will think about it and let you know the ruling later, in writing.

If the judge makes an oral ruling, take detailed notes so you know the exact terms. Also make sure you know who is in charge of writing up the order and notifying all interested parties (people who are affected by the ruling). Sometimes the clerk prepares the order for the judge to sign; other times the judge asks one party (most often the prevailing party) to draft the order for the judge to sign, and give notice of the court’s order.

How Can You Best Prepare for the Trial?

When you press your claim in small claims court, it is very important that you appear credible, well-informed, and organized. In cases where an individual is going up against a corporation or small business, it become even more important to appear at least as reasonable and competent as the plaintiff.

Here are some tips:

• Write down the points you plan to make and then make those points in an orderly manner. Divide your planned testimony into sections built around the main points. In each section, note any evidence you have. If your evidence consists of a number of items, make sure that you put them in order and can find each item quickly.

• Organize your paperwork for easy retrieval in case the judge asks  a question which requires you to abandon your order of presentation. Have several copies of each item of evidence with you, but keep the extra copies in a separate folder so that you are not ruffling through sheets of paper when presenting your  evidence.

• Practice your presentation in advance. Line up an objective, tough-minded friend and run through your entire case, including all the evidence, exactly as you plan to present it on court day. Ask your friend for suggestions, not compliments. For example, he may tell you that you need a witness or written documentation, a better grasp of the legal technicalities involved or a better-organized presentation. Take his advice to heart and make all possible improvements. Then practice again.

What Happens When You Get to Court?

On the day your small claims case is tried, get to court early so that you have a chance to look around, feel comfortable, and if possible, observe trials going on before yours. Before entering the courtroom, check with the Clerk to make sure that your case is scheduled that day. Sometimes it is necessary for the judge to postpone a trial because of emergency cases or for other reasons.

While you are waiting in the courtroom, go through your papers to make sure you have brought all your evidence. When your name is called, step forward and indicate that you are ready to proceed with the trial.

Note: If you are for any reason unable to show up on the day your case is set for trial, you can attempt to have it continued or postponed. As soon as you know you will need to delay the trial, check with the Clerk for the procedure for continuance. In most cases, you will either have to file a Motion for Continuance and appear with the Defendant in court to set a new date or contact the Defendant yourself and arrange for a Stipulation, through which a new trial date is set. Remember to ask the Clerk for the next available date and time before trying to work out any agreement. In the Small Claims Division, you can only obtain a continuance for serious reasons.

What Will the Trial Be Like?

The judge will explain the court procedure and you will be sworn in. Then, you will have an opportunity to tell your side of the story. Understand that the judge is busy and has heard dozens of stories like yours. To keep the judge's attention, get to the point quickly by describing the event that gave rise to your claim. Another way of saying this is to start with the end, not the beginning, of your story.  Use no more than two or three sentences to describe what happened.

After you make your point, immediately follow up by stating how much money you are requesting.  Show the judge any bills, receipts, letters or other documents that you have brought along as supporting evidence. If the judge doesn’t understand you, or wants something made clearer, the judge will ask you questions. The judge will also let the person you are suing ask you questions. Then your witnesses can tell what they know about your case.

The person you are suing (the defendant) will then have his opportunity to tell his or her side of the story. The judge will ask the defendant questions and then you will be able to ask questions as well. If you think the defendant is not telling the truth, try to ask questions in a calm and logical manner that will expose that fact.

After the judge has heard the evidence from both sides and from the witnesses, if any, and everyone has asked all the questions they want to ask, the judge will either issue a decision on the spot or he or she will decide the case later and notify you and your adversary by mail. A final decision is called a "Judgment". In the Small Claims Division, the judge must make his decision within ten (10) days of trial.

An Example

In my first suit under Section 227, my adversary did not show for the discovery/pre-trial conference.  This was after their lawyer moved the case out of Small Claims and into the Justice Court.  The next day I filed a motion for a default judgment which the judge converted into an Order to Show Cause and scheduled a hearing.  Four days before the hearing, I receive a letter that offered to settle the case from the opposing attorney.  In stated: "Upon review of applicable law, Choice One is ready, willing and able to tender to you $1,000 in full satisfaction of your claims."

In exchange for the $1,000, I had to dismiss my complaint "with prejudice",  meaning I would not refile the lawsuit based on the same claims. I was spared the expense of a trial which, if it had occurred, I probably would have gotten somewhere between $1,000 and $1,500. 

When Do You Collect?

Keep in mind, that winning the case doesn’t mean you will get your money.  You still have to collect it…. The court will NOT do it for you.

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Background Information About Junk Spam Faxes.

The TCPA and Federal Communications Commission (FCC) rules generally prohibit most unsolicited junk facsimile (fax spam) advertisements. The TCPA states that an advertiser cannot send you unsolicited fax advertisements unless you have given the advertiser your prior express consent to receive fax advertisements or you have an established business relationship (EBR). Even if the advertiser has received your prior express consent or has EBR, they are also required to allow you to ?opt out? of receiving their junk fax advertisements. The Junk Fax Prevention Act of 2005, directed the FCC to amend its rules adopted pursuant to the TCPA regarding fax advertising. The FCC?s revised rules:

		Require the sender of fax advertisements to provide specific information on the fax that allows recipients to ?opt-out? of any future faxes from the sender
		Specify the circumstances under which a request to ?opt-out? complies with the Act.