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Information for Defendants in Small Claims Cases
The Small Claims Hearing

Courtroom Code of Dress and Behavior – When you come to court for your hearing you should dress neatly and cleanly—the way you would for any important occasion. Many judges do not allow people to appear in court wearing shorts, crop tops, hats, gang colors, or other gang insignia. You should be courteous to the judge, the court clerks, and other people in the courtroom, including the plaintiff.

You should not bring children with you to court unless they are old enough to stay in their seats and sit quietly. While court is in session and you are waiting for your turn to talk to the judge, you should not visit with people around you because this can be distracting to other people in the courtroom. Cell phones and pagers are not allowed in the courtroom unless they are turned off. You cannot take pictures or make a tape recording at the hearing unless you have the judge’s permission. Food or drink is not allowed in the courtroom.

Attorneys or Other Representatives – When you come to the hearing to talk to the judge you cannot have an attorney appear with you or for you at the hearing but you can talk to a lawyer before or after your hearing to get more information and legal advice. You cannot have a friend or relative appear in court instead of you but you can bring friends or relatives as witnesses and friends or relatives can come to court to watch the hearing. A business can appear in court through an owner or through an employee, so long as the employee is not an attorney.

Interpreters – If you or one of your witnesses will need an interpreter at the hearing, you must ask the court clerk to get one for you before the day of the hearing. The deadline to ask for an interpreter varies depending on the county and the language for which you need. You can ask the court clerk what the deadline is in your county. If there is no deadline, you should ask for an interpreter two weeks before your hearing. You must tell the court clerk your case number and the language for which you need an interpreter. You do not have to pay for an interpreter. Generally, a friend or relative will not be allowed to interpret for you or your witness.

Evidence - At the hearing, the judge will ask the plaintiff to explain why you should pay the amount of money the plaintiff is asking for and/or why you should return the property the plaintiff is asking for. The judge will then ask you to explain why you disagree with the claim.

Sometimes there is a disagreement about the facts of the case or a party not telling the truth. Sometimes both parties are telling the truth as they see it but they see things or remember things differently. When the disagreement is about the facts of the case it is important for you to be prepared to give the judge evidence to support your side of the case. There are two basic types of evidence—witness testimony and exhibits.

Witness Testimony – When you tell the judge about something that happened, you are a witness giving testimony. There may be other people who saw or heard something that happened that is important to your case. For example, if your claim is about a car accident, someone who saw the accident may be an important witness; if your claim is about a verbal agreement, someone who heard you and the defendant making the agreement may be an important witness.

There are two ways you can offer what another person has to say at the hearing. One is to have the witness come to the hearing to tell the judge what the witness saw or heard. Another way is to have the witness write a statement and bring the statement to the hearing with you. It is usually better to have the witness come to the hearing. A witness in court is usually more convincing because the witness has to stand up in court and promise to tell the truth and the judge can ask the witness questions. If your witness lives a long distance away, you can ask the judge to allow the witness to testify by telephone. If you want to ask the judge to allow a witness to testify by telephone, you must make your request in writing, explain the reasons for your request, and file it with the court clerk at least two weeks before your hearing. The request does not have to be in any particular form but it must include the same
caption (name of the court, name of the plaintiff and defendant, and case number) as the claim. The court clerk will notify you before your hearing whether the judge granted your request and any special instructions for you or your witness.

The second is to ask the court to
subpoena (an order telling a witness to come to the hearing) your witness. You must ask the court clerk for a subpoena form. You must fill out the form and take it to the court clerk. The subpoena must be served (delivered to the witness in person). The subpoena can be served by the sheriff’s office, by a private process server, or by any person at least 18 years old who is not a party (plaintiff or defendant) in your case or an employee of a party in your case. Private process servers can be found in the phone book. The sheriff’s office or a private process server will charge a fee to serve the subpoena. The sheriff’s office or a private process server will ask you for information you have that describes the witness and where the witness can be found. The sheriff’s office will not search to find the witness for you. If you do not know where the witness can be found, some private process server offer investigative services. A private process server will charge you more to find the witness for you.

If the sheriff’s office serves the subpoena, the sheriff’s office will file a return of service with the court clerk that states whether the sheriff was able to serve the subpoena on the witness and if served, how the witness was served. If someone else serves the subpoena on the witness, the process server will need to file an “Affidavit of Service” with the court clerk before the hearing. In some counties, the process server can get a form from the court clerk. The affidavit must be typewritten or printed in black ink. It must have the same
caption (name of the plaintiff, name of the defendant, and the case number). It must say whether the process server was able to serve the subpoena on the witness and, if the subpoena was served, when and how the witness was served. The affidavit must be signed in front of a notary and the notary must sign and seal the affidavit. In some counties, there is a notary at the court clerk’s office. The witness may require you to pay a witness fee. If the witness is properly served and does not come to the hearing, the witness can be held in contempt and the judge can order the witness to pay a fine and/or go to jail.

Exhibits – Exhibits are things that may help prove your case. The most common types of exhibits are documents and photographs but an exhibit can be anything that is useful to show the judge what happened in your case. You should bring any exhibits to the hearing that may help prove your case. There are some types of exhibits that can be especially important in certain cases.

·          If your case is about a contract (written agreement), you should bring all of the contract papers.

·          If the plaintiff claims that you failed to pay money that you owed, you should bring a copy of your receipt or cancelled check.

·          If there is an issue in your case about the condition of property, photographs of the property can be very useful.

·          If there is an issue in your case about the cost or value of property or repairs to property, estimates and receipts can be very useful.

·          If your claim is about a car accident, it is useful to have a diagram or drawing of the area where the accident occurred showing the streets, the location of any traffic signs or lights, and the location and direction of the cars. You can bring a diagram with you or the courtroom will have a drawing board where you can draw a diagram at the hearing. If police were called to the accident a copy of the police report may be useful and you may want the police officer to come to the hearing to testify as a witness.

If your exhibit is a tape recording, you should bring a tape player to the hearing to play the tape. If your exhibit is a video recording, you should call the court clerk’s office before the day of your hearing to let the court clerk know you are bringing a video so that a video player can be available in the courtroom for your hearing.

Expert Witnesses
– If there is an issue in your case about whether services were properly rendered by the plaintiff, it is likely that you will need a statement or testimony from an expert witness (someone who has training or experience in a trade or profession). An expert witness will review the facts of your case, tell the judge whether the plaintiff’s work met the minimum standards of that trade or profession, and tell the judge how the failure to meet those standards caused your failure to pay for services. For example, the plaintiff’s claim may be that you failed to pay for repairs to your car. Your position may be that your car wasn’t running right and you took it to the plaintiff to fix it. When you got the car back it still wasn’t running right. Your judge may or may not know anything about fixing cars—how to figure out what needs to be fixed and how to fix it. You may need someone with training or experience in fixing cars to tell the judge whether the plaintiff did what a properly trained and experienced mechanic should have done to figure out and fix the problem and whether the problem with your car now is because of something the plaintiff did wrong or because of some new problem.

The Roll Call – When you come to the courtroom for your hearing there may be several other small claims cases scheduled for the same time. The first thing the judge will do is call the roll of cases to find out which parties (plaintiffs and defendants) are present and whether each case will uncontested or contested. The judge will do the uncontested cases first.

Uncontested Cases – If either party in a case fails to appear, the case is considered to be uncontested.

If you do not appear at the hearing, the judge may give the plaintiff a default judgment (judgment entered against a party who has failed to defend against a claim). Default judgment, which can also be ordered in you fail to file an answer to the plaintiff’s claim within the deadline on your summons, is described in detail in the document A Claim Has Been Filed.

If the plaintiff appears at the hearing and you and the plaintiff agree about your claim, the case is considered to be uncontested and the judge will enter a
stipulated judgment (judgment based on your agreement).

If you have agreed to
settle out of court (you and the plaintiff have agreed to solve things between yourselves and don’t need a judgment from the judge), the judge will dismiss the plaintiff’s claim.

If you and the plaintiff have agreed that there are things one or both of you will do later that will resolve the claim, you should put your agreement in writing and both of you should sign the agreement. The judge will dismiss the plaintiff’s claim
without prejudice (which means the plaintiff can refile the claim later) in case you don’t do what you and the plaintiff agreed.

If you and the plaintiff agree that the plaintiff is not entitled to a judgment, the judge will dismiss the plaintiff’s claim
with prejudice (which means that the plaintiff can’t refile the claim later).

If you and the plaintiff agree that the plaintiff is entitled to a judgment and the amount of money and/or the personal property you should return, the judge will enter a judgment in favor of the plaintiff stating the amount of money the defendant is to pay to and/or the personal property the defendant is to return. The judge will date and sign the judgment.

If neither party comes to the hearing, the judge will dismiss the claim
without prejudice (which means the plaintiff can refile the claim later). If you come to the hearing but the plaintiff does not appear, the judge will dismiss the claim with prejudice (which means the plaintiff cannot refile the claim later).

If the claim is dismissed with prejudice, the plaintiff can ask the judge to set aside the dismissal. A request to set aside a dismissal must be made by the plaintiff by filing a “Motion to Set Aside Dismissal with Prejudice” within a reasonable time, usually within two weeks after the judgment was entered. If the plaintiff files a motion to set aside the dismissal, one of the following three things will happen:

  1. The judge may decide that the motion shows that the plaintiff did not have good cause for failing to appear at the hearing on the claim and deny the motion.
  2. The judge may decide that the motion shows that the plaintiff had good cause for failing to appear at the hearing on the claim and grant the motion. If the judge grants the motion, the judge will set aside the dismissal and the court clerk will schedule a new hearing on the claim. The court clerk will mail a notice of the new date and time for your hearing to you and the plaintiff.
  3. The judge may schedule a hearing on the plaintiff’s motion. The court clerk will mail a notice of the date and time for the hearing on the motion to you and the plaintiff. The judge may decide at the hearing that the plaintiff had good cause for failing to appear at the hearing on the claim and grant the plaintiff’s motion to set aside the dismissal. The judge will then have the hearing on the claim. So, if you receive a notice of hearing on a motion to set aside the dismissal, you need to come to the hearing on the motion and be prepared to have the hearing on the claim, too. If you had costs from having to attend a second hearing, you can ask the judge to order the plaintiff to pay you for those costs. Or, the judge may decide at the hearing that the plaintiff did not have good cause for failing to appear at the hearing on the claim and deny the plaintiff’s motion to set aside the dismissal.

Contested Cases – After the judge has finished the uncontested cases, the judge will start hearing the contested cases. When your case is called you and your witnesses will go to the defendant’s table and the plaintiff and the plaintiff’s witnesses will go to the plaintiff’s table. If you have any papers, photographs, or other exhibits that you want the judge to see you should give them to the court clerk at this time.

The judge will ask the
parties (plaintiff and defendant) and their witnesses to be sworn to tell the truth. The parties and their witnesses will stand, raise their right hands, and the judge or court clerk will ask if each one swears or affirms that the testimony they are about to give is the truth, the whole truth, and nothing but the truth.

The judge will ask the plaintiff to explain the plaintiff’s claim and the reasons for the amount of money the plaintiff is asking for. After the plaintiff explains the plaintiff’s side of the case, the judge will ask you to explain why you disagree with the claim. The judge is likely to interrupt you with questions. If the judge interrupts you, the judge is not trying to be rude but is asking questions to guide you to the information that is relevant to showing that the plaintiff has not proven the elements of the case, showing the elements of a defense to the case, and to avoid wasting time with information that is not relevant. For example, if the claim is about a contract, the judge will be looking for information about whether there was an agreement, the terms of the agreement, whether the defendant
breached the contract (failed to do what the parties agreed), and, if so, whether the breach caused damages to the plaintiff and the amount of damages. Some parties want to tell the judge all of the reasons they think the other party is a jerk (or worse) but that information is not relevant to what the judge must decide—which is whether the plaintiff has a legal claim and is entitled to judgment or whether the defendant has a legal defense to the claim.

While the plaintiff is explaining the plaintiff’s side of the case to the judge, you should not interrupt. Also, the judge may not allow you to ask the plaintiff questions. If there is a question you would like to ask the plaintiff, tell the judge the question you would like to ask when you are explaining your side of the case. The judge will either tell you that you can question the plaintiff directly or the judge may ask the plaintiff your question. Many judges will now allow the parties in small claims court to question each other because in many cases the parties will get into an argument with each other and it won’t help the judge get the information the judge needs to make a decision.

When the judge is done asking questions, the judge will either give your exhibits back to you or the judge may keep them in the court file. If the judge gives them back to you, you should keep them in case either party files an appeal. If the court clerk has not given your exhibits back to you after the time for appeal is over, you may ask the court clerk to give them back to you.

If possible, the judge will decide your case at the hearing and briefly explain the reasons for the decision. Once the judge has told you that the judge is ready to make a decision, the judge will not listen to any further argument about the case. Sometimes the judge may need time to research a legal issue, look at the parties’ exhibits, or just need time to think about it. If the judge takes the case
under advisement (needs more time to make a decision), a decision can be expected within a week or two after the hearing.

When the judge has made a decision, the judge will enter a judgment. If the judge decides that you should pay money to the plaintiff and/or that you should return personal property to the plaintiff, the judgment will be in favor of the plaintiff and state the amount of money you should pay and/or the personal property that you should return to the plaintiff. The judgment will also state the amount you are to pay the plaintiff for the cost of the filing fee that the plaintiff paid to file the claim and the amount of the cost the plaintiff paid to serve process on you. If the judge decides that you should not pay any money or return personal property, the judgment will be in favor of the defendant. The court clerk will either give a copy of the judgment to you and the plaintiff while you are at the hearing or mail one to you and the plaintiff after the hearing.

In some counties the court clerk makes a tape recording of small claims hearings. If you want a copy of the tape of your hearing, or if you want a transcript of your hearing, you can ask for one at the court clerk’s office. You must pay a fee for a copy of the tape or transcript before the court clerk will make a copy of the tape or have a
transcript prepared. (To prepare a transcript, a transcriber listens to the tape and types out everything that was said.)

If you disagree with the judgment you can file an appeal.



 

Filing an Answer

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Appeals