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A.  STRATEGIES TO WIN YOUR CASE IN SMALL CLAIMS COURT

If you cannot get satisfaction by personal negotiation, you might consider suing in small claims court.

Small claims courts, which help you collect money in an informal and inexpensive manner without hiring a lawyer, hear over a million cases a year. They can be used in many situations. For example, you may wish to sue for money damages when:

• your employer fails to pay you

• someone damages your property and refuses to pay for repairs

• a car dealer refuses to return a refundable deposit when you cancel the deal

• you purchase merchandise that is damaged during delivery and the store refuses to replace it or refund your money

• you want to recover money you paid to a mechanic who does shoddy work or gives poor service

• you are a victim of misleading advertising

• a dry cleaning establishment ruins your clothing

Small claims court works. Many have night sessions and matters are resolved quickly, sometimes within a month from the time an action is filed. The maximum amount of money you can recover varies from state to state. It is usually up to $3,500.

The following guidelines describe the procedures of a typical small claims court. However, the rules vary in each city and state. Before you contemplate starting a lawsuit, call the clerk of that court and ask for a written explanation of the specific procedural rules to be followed.

Who Can Be Sued?

Small claims court can be used to sue any person, business, partnership, corporation, or government body owing you money. If you sue in small claims court and recover a judgment, you are precluded from suing again to recover any additional money owed to you. Thus, if your claim greatly exceeds the maximum amount of money that might be awarded in small claims court, consider hiring a lawyer and instituting suit in a higher court.

Small claims court can be used to sue any person, business, partnership, corporation, or government body owing you money.

Do You Have a Valid Claim?

In order to be successful, you must have a valid claim. This means that you must:

1.  identify the person or business that damaged or caused you harm

2.  calculate the amount of damages you suffered

3.  show that there is some basis in law to have a court award you damages

4.  be sure that you were not the main cause of your own harm, that you haven't waited too long to start the action (statute of limitations), and that you did not sign a written release

The fact that you have been damaged physically or monetarily does not mean that you will automatically recover money damages in small claims court. For example, suppose you are assaulted after striking someone, are involved in an automobile accident that you could have avoided, or receive a check that bounces after you fail to deliver goods as promised. Chances are you cannot recover money for your loss.

Where to Sue

Call your local bar association, city hall, or the county courthouse to discover where the nearest small claims court is located. (In some states, small claims court is called justice court, district court, municipal court, or justice of the peace court.) You cannot start the action just anyplace. In most states, suit must be brought in the county in which the person or business you are suing lives or does business.

Confirm this with the small claims court clerk and ask what days and hours the court is in session. Also find out the maximum amount of money you can sue for, what documents are needed to file a complaint, the filing fee, and whether this can be paid by cash, check, or money order.

What Can You Sue For?

You can sue only to collect money If you purchased a defective dishwasher and seek replacement, the court does not have the power to order the store to give you another dishwasher. But if you win your case, you will be awarded money to buy another one. Thus, before you begin to sue in small claims court, estimate the loss in money you wish to collect.

Sometimes you need not have spent money before starting an action. For example, you can sue in small claims court when a car dealer refuses to honor a warranty, which will force you to spend money to have your car repaired. (Obtain written estimates from local merchants to prove your claim.) Or, you may have been promised that a new stereo system would be delivered to your house the day before a party and the unit never arrived. (Calculate a monetary figure for the damage you sustained as a result of the nondelivery.)

When calculating the amount of your claim, include all incurred expenses, including gasoline bills, tolls, telephone costs, losses due to time missed from work, sales tax, and interest, if applicable. Save all your receipts for this purpose.

Starting the Lawsuit

You begin the lawsuit by paying a small fee (about $4) and either going to the court in person or mailing in a complaint that states the following information:

• your name and address

• the complete name and address of the person, business, or company you are suing (the defendant)

• the amount of money you believe you are owed

• the facts

• the reasons you (the plaintiff are seeking redress

If you are filing a claim on behalf of an individually owned business, you must list the name of the owner in addition to the name of the business. If you are filing a claim on behalf of a partnership, you must list the name of the partnership as the plaintiff. (Some states do not allow a corporation to sue someone in small claims court.)

Be sure to write the accurate and complete name and address of the defendant on the complaint. Write the corporation's formal name rather than its "doing business" (d b/a) name. Thus, if you are suing a corporation, contact the county clerk’s office in the county where the corporation does business to obtain its proper name and address. Better still, call the department of corporations in your state to obtain such information.

When you are suing more than one person-for example, a husband and wife-sue each one separately in the complaint. Sue a woman in her legal name rather than her married name (Mary Kane, not Mrs. Mark Kane). If your problem is consumer-oriented, state how you were mistreated. For example, if you demanded satisfaction, or sent a certified letter, specify when and whom you contacted. You might also write, if applicable, that the defendant failed to make you a reasonable offer of settlement after becoming aware of your problem. Some states require you to send a demand letter before suing in small claims court. Investigate this with the clerk (see Figure 7.1).

At this time, you may also be required to prepare another form called a "summons," which notifies your opponent that you are suing him or her. Sometimes the clerk will do this. Ask the clerk whether the court will mail the summons by registered or first-class mail, personally serve the defendant on your behalf, or whether you must hire a professional process server.

If a professional process server is required, ask what is necessary to prove that service was accomplished. You may have to pay the process server an additional fee (between $10 and $30). However, if you win your case, you can ask the judge to include the process server's fee in the award.

When the clerk gives you a hearing date, be sure that it is convenient and you have no other commitments.

The Defendant's Response

When the person or company you are suing receives the summons, the defendant or his or her attorney can:

• deny your claim by mailing a written denial to the court

• deny your claim by personally appearing in court on the day of the hearing

• sue you for money you supposedly owe (this is called a it counterclaim")

• contact you to settle the matter out of court

If an offer of payment is made, ask to be reimbursed for all filing and service costs. Notify the court that you are dismissing the action only after you receive payment. (If you are paid by check, wait until it clears.) Do not postpone the case. Tell your opponent that unless you are paid before the day of the trial, you are prepared to go to court and either commence with the trial or stipulate the offer of settlement to the judge.

If a written denial is mailed to the court, ask the clerk to read it to you over the phone or go to the court and read it yourself This is your right and it may help you prepare for your opponent's defense. The following is an example of a simple denial in an answer:

"I deny each and every allegation in the face of the complaint.

Now you must prove your allegations in court to recover your claim.

Your Duties as the Moving Party

It is up to you to follow the progress of your case. Call the clerk and refer to the docket number to discover whether the defendant received the complaint and whether it was answered. If you discover that the defendant did not receive the complaint by the day of the trial, request the clerk to issue a new complaint to be served by a sheriff or process server. Go to court that day anyway, to be sure that the case is not dismissed because of your failure to appear.

If the complaint is personally served and your opponent does not appear at the trial, he or she will be in default and you may be awarded a judgment automatically. In some states, you still have to prove your case in order to be successful. Also, defendants sometimes file motions (legal affidavits) requesting the court to remove the default judgment on the grounds that there was a valid reason for not attending the hearing. If this motion is granted, your trial will be rescheduled.

If you are unable to come to court on the day of the trial, send a certified letter to the clerk, asking for a continuance. The letter should specify the reasons you will be unable to appear and include future dates when you will be able to come to court. Send a copy of this letter to your opponent. When you receive a new date, send your opponent a certified letter informing him or her of the revised date.

Requests for continuances are sometimes not honored. Call the clerk on the day of the old trial date to be sure that your request has been granted. Be prepared to send a friend or relative to court to ask for a continuance on your behalf if a continuance has not been obtained by the day of the trial.

Preparing for Trial

Subpoenas. You have several weeks to prepare for trial. Use the time wisely. First, be sure that your friendly witnesses, if any, will attend the trial and testify on your behalf Select witnesses who are believable and who will not say things that will surprise you. In some states, you can present the judge with signed affidavits or statements of witnesses who are unable to appear at the trial. A few states also permit judges to hear testimony via conference telephones.

If necessary, the clerk can issue a subpoena to compel the attendance of important witnesses who you believe may refuse to attend and testify. A subpoena is a document that orders a person to testify or produce books, papers, and other physical objects on a specified date. If the subpoena is issued and the person refuses to appear, a judge can direct a sheriff to bring the witness into court, or even impose a jail sentence for a willful violation of the order.

When you come to court for the trial, check to see if the clerk received any subpoenaed documents. If such records are crucial to your case and have not been received, you can ask for an adjournment. If you have subpoenaed an individual and do not know what he or she looks like, ask the clerk to call out the name to determine if he or she is present so you can proceed with the trial.

Organizing the facts. To maximize your chances of success, organize your case before the day of the trial. Gather and label all of your evidence so that you can produce the documents easily. You may also wish to speak with a lawyer or call a lawyer's referral service for legal advice. Many communities have such advisory organizations, and they are willing to inform you, without charge, about relevant cases and statutes. This may help you know what damages you are legally entitled to. You may cite these laws, if applicable, at the hearing.

Practice what you will say to the judge. This will put you at ease and help you organize the important facts. Make a brief outline and refer to it while speaking. Prepare a list of questions that you would like to ask each witness and your opponent. You are allowed to refer to the list at the hearing.

The Trial

Arrive early, locate the correct courtroom, find the name of your case on the court calendar, and check in with the clerk. You should be properly attired, preferably in business clothes.

Come prepared with all relevant documents. These include:

• receipts and canceled checks

• correspondence

• contracts, leases, and bills of sale

• warranties, advertisements, written promises, and statements made to you

• estimates

• signed affidavits or statements from friends and witnesses unable to appear at the hearing

• clear photographs and other evidence to prove your case

• an employer's statement of lost wages; a doctor's letter reflecting lost time from work

• medical bills and reports

• police and accident reports

• diagrams or charts

• copies of applicable statutes, cases, and regulations

• actual exhibits or products, if possible (For example, if you paid for a new part but a used part was installed in your car, you may wish to bring the used part into court if it can be easily removed and carried.)

When your case is called, you and your opponent will be sworn in. The judge or a court-appointed arbitrator will conduct the hearing and ask you questions. Be relaxed. Keep your presentation brief and to the point. Tell why you are suing the defendant and what you are seeking in money damages. Show your evidence. Bring along a short written summary of the case. You can refer to it during the trial, and if the judge does not come to an immediate decision, he or she can use your outline for reference. Talk directly to the judge and respond to his or her questions. Show respect. Always refer to him or her as "Your Honor" or "Judge." Listen to the judge's instructions and never argue. If the judge asks you a question while you are speaking, stop immediately. Then answer the question honestly and to the point.

Be diplomatic rather than emotional. Also, avoid arguing with your opponent in court and never interrupt his or her presentation.

After both sides have finished speaking, you have the opportunity to refute what your opponent told the judge. Do not be intimidated if he or she is accompanied by a lawyer. Simply inform the judge that you are not represented by counsel and are not familiar with small claims court procedures. Ask the judge to intercede on your behalf if you feel that your opponent's attorney is treating you unfairly. Most judges will be sympathetic, since small claims courts are specifically designed for you to present your case without an attorney.

If You Are a Defendant

Follow the same procedures as the plaintiff: prepare your testimony; contact your witnesses to be sure that they will appear at the trial and testify on your behalf; collect your exhibits and documents; arrive early on the day of the trial and check in with the clerk. If you have any doubts about your case, try to settle with the plaintiff before the judge hears the case.

Request that the case be dismissed if your opponent fails to appear. Your adversary will speak first if he or she appears. Wait until he or she is finished speaking before telling your side of the story. Point out any inconsistencies or flaws in your opponent's story. Conclude your remarks by highlighting the important aspects of your case.

Strategies to Help You Win Your Case

Demand letter. Some states require that you send a "30-day demand letter" before filing an action against a retail store or business.

The letter should briefly describe what happened, your money and/or property loss, and what you want the seller or business to do to remedy the situation. Add that you are giving the business 30 days to make a good-faith response. Otherwise, you will begin legal action.

Send the letter certified, return receipt requested, and consider sending copies to your state's attorney general's office, your local consumer protection agency, and the BBB.

If the letter is answered and the business refuses to pay, you may learn what position they intend to take at the trial. If your letter is ignored, that is evidence in court.

Common complaints. The following EXAMPLES of common complaints illustrate the elements you must prove in court.

Obtaining judgment

Some small claims court judges render oral decisions on the spot. Others issue a decision in writing several days after the hearing. This gives them time to weigh the testimony and exhibits. If your opponent failed to attend the hearing, judges usually render a judgment of default immediately after your presentation.

If you win the case, make sure you know how and when payment will be made. Check to see that all of your disbursements-including court costs, filing fees, service of process, and applicable witness fees-are added to the amount of your judgment. Send a copy of the decision by certified mail, return receipt requested, to your opponent, together with a letter requesting payment. Some states require that payment be made to the court, others allow payment to be made directly to you.

Do not hesitate to act if you do not receive the money. First, contact the clerk and file a Petition for Notice to Show Cause. This will be sent to the defendant, ordering him or her to come into court and explain why he or she has not paid. You should also file an Order of Execution with the sheriff's, constable's, or clerk's office in the county where the defendant resides, works, or owns a business. This will enable you to discover where the defendant has assets. The sheriff or other enforcement agent has the power to go out and collect the judgment either by seizing personal property, freezing the defendant's bank accounts, placing a lien on any real estate, or even garnisheeing salary. The clerk of your small claims court will tell you exactly what to do to collect your judgment.

Additional Procedural Points

By bringing suit in small claims court, you usually waive your rights to a trial by 'jury However, the defendant can surprise you. Some states allow defendants to move a small claims court case to a higher court and/or obtain a trial by jury. If this occurs, you will need a lawyer to represent you, and his or her services could cost as much as your claim in the dispute.

Some states don’t allow losing plaintiffs to appeal. Also, an appeals court will overturn the decision of a small claims court judge only if there is strong proof that the judge was biased or dishonest. This is very difficult to prove. Prepare your case well the first time, and walk away if you lose.