Information for Plaintiffs 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 defendant.
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 you to explain why the defendant should pay you the money you are asking for and the reasons for the amount of money or why the defendant should return the property you are asking for. The defendant may disagree with your claim for money or the return of personal property or just the amount of the money you are asking for. The judge will ask the defendant to explain why the defendant disagrees.
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 prove your claim. 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, names of the plaintiffs and defendants, and case number) as your 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 on the witness much like giving notice of your claim to the defendant which is described above. 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.
· You should bring any receipts for costs or expenses that you are asking the defendant to pay.
· If your claim is about a contract (written agreement), you should bring all of the contract papers.
· If your claim is about a past due installment on a loan or other past due account, you should bring a copy of the account which shows the charges to the account, the payments on the account, and the current balance.
· If your claim is about a defective product, you should bring any warranty papers that came with the product you bought.
· If your claim is about damage to property, you should bring photographs that show the damage. If you have not had the damage repaired, you should bring at least two estimates of the cost of the repairs.
· If your claim is about property that has been lost or destroyed, you should bring estimates of the value of the property. Receipts for the cost of the property that was lost or destroyed or receipts for the cost of replacement property may also be useful.
· If your claim is about lost wages, you should bring something from your employer that shows how much you lost—pay stubs that show your usual wage and the time you missed from work.
· 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 claim is about a bad check, you should bring the returned check. There is a state law that allows you to claim damages in addition to the amount of the check. You can ask for damages of $100 or triple the amount of the check up to $500. If you want to ask for damages, you must send a certified letter to the defendant at the defendant’s last known address at least ten days before you file your claim. The letter must demand payment for the check and say that if the defendant does not pay the check before you file your claim in small claims court a judgment could be entered against the defendant for the amount of the check (state the amount), the amount of the damages (state the amount), and your cost for filing the claim and giving notice of your claim to the defendant.
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 your claim is that you paid the defendant to provide work or services for you and the defendant did not do it properly, it is likely that you will need a statement or testimony from an expert witness (someone who has training or experience in the defendant’s trade or profession).
You must have a statement or testimony from an expert witness if your claim is a malpractice claim (a claim against a doctor, a dentist, a lawyer, an accountant, or any other professional). Malpractice claims can be complicated and in some cases there may be future damages that you don’t yet know about. You should talk to a lawyer before you decide whether you want to use small claims court for this type of claim.
An expert witness will review the facts of your case, tell the judge whether the defendant’s work met the minimum standards of that trade or profession, and tell the judge how the failure to meet those standards caused your damages. For example, your claim may be that your car wasn’t running right so you took it to a mechanic and paid money to get it fixed. 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 mechanic 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 mechanic 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 the defendant appears at the hearing and you and the defendant 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 defendant have agreed to solve things between yourselves and don’t need a judgment from the judge), the judge will dismiss your claim.
If you and the defendant 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 your claim without prejudice (which means you can refile your claim later) in case the defendant does not do what you and the defendant agreed.
If you and the defendant agree that you are not entitled to a judgment, the judge will dismiss your claim with prejudice (which means that you can’t refile the claim later).
If you and the defendant agree that you are entitled to a judgment and the amount of money and/or the personal property the defendant should return to you, the judge will enter a judgment in favor of the plaintiff stating the amount of money the defendant is to pay to you and/or the personal property the defendant is to return to you. The judge will date and sign the judgment.
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 plaintiff’s table and the defendant and the defendant’s witnesses will go to the defendant’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 you to explain your claim and the reasons for the amount of money you are asking for. 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 proving the elements of a claim 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.
Then the judge will ask the defendant to explain why the defendant disagrees with your claim. While the defendant is explaining the defendant’s side of the case to the judge, you should not interrupt. Also, the judge may not allow you to ask the defendant questions. If there is a question you would like to ask the defendant, 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 defendant directly or the judge may ask the defendant 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.
The judge may ask you if there is anything else you would like to say. 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 the defendant should pay you money and/or that the defendant should return personal property to you, the judgment will be in favor of the plaintiff and state the amount of money the defendant should pay and/or the personal property that the defendant should return to you. The judgment will also state the amount the defendant is to pay you for the cost of the filing fee that you paid to file your claim and the amount of the cost you paid to serve process on the defendant. If the judge decides that the defendant should not pay you 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 defendant while you are at the hearing or mail one to you and the defendant 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.