Service of Process: The required delivery of copies of legal documents or court papers such as subpoenas and complaints, usually by personal delivery to the defendant or other person to whom the documents are directed. Settlement: An agreement between plaintiff and defendant to resolve their dispute prior to trial. In some states, a settlement sometimes called a Stipulated Judgment can be presented to the judge and made into a formal court judgment. Statute: A law adopted by a state or the federal government. In small claims court, state law is applicable in almost all situations. See Section D of this chapter for information on how to look up the law.
Statute of Limitations: The time period within which you must file your lawsuit. It is normally figured as a set number of years from the date the act or omission giving rise to the lawsuit occurred. The time limit will vary depending on the subject matter of the suit. Stay of Enforcement: When a small claims court judgment is appealed by the losing party, enforcement collection of the judgment is stayed stopped until the time for appeal has expired. Stipulation: An agreement to compromise a case often called a settlement that is entered into by the parties and then presented to the judge.
See Settlement. More often, they take cases under submission and mail out decisions later. Subpoena: A court order requiring a witness to appear in court. It must be served on given to the person being subpoenaed in order to be valid. Subpoena Duces Tecum: A court order requiring that certain documents be produced in court. Substituted Service: A method by which court papers may be served on a defendant who is difficult to serve by other means. In a few states, the defendant can transfer a case simply to get out of small claims court.
In many states, a defendant who wants a jury trial can also transfer to formal court. See the Appendix for details. Trial De Novo: The rehearing of a small claims case from scratch after the defendant files an appeal. In this situation, the previous decision by the small claims judge has no effect, and the appeal takes the form of a new trial trial de novo. This is allowed only in some states.
Check the Appendix. Venue: The proper location court in which to bring a suit see Chapter If a suit is brought in the wrong place, it can be transferred to the right court or dismissed, in which case the plaintiff must refile in the right court. Writ of Execution: An order by a court to the sheriff, marshal, or constable of a specific area in most states, this is either a city or county to collect a specific amount of money due.
Everybody's Guide to Small Claims Court
Legal Research As part of using small claims court, you may need to look up a state law or city or county ordinance. Other states follow a less organized system under which all laws are lumped together in one seemingly endless numerical sequence. In either case, a subject index often in the last volume will be available.
Law in the Library You can find your state laws at any large public library, publicly funded law school library, or county law library usually located in the main county courthouse or in larger branch courthouses. All of these are open to the public. Ordinances are laws passed by cities and counties. Among other things, ordinances often include zoning rules, building codes, leash laws, parking restrictions, view and tree-cutting rules, and minor vehicle violations.
Usually, you can get copies of local ordinances from city or county offices. Collected sets are commonly available at the public library and, for more populous cities and counties, online. If you do your research at a law library, you may have an opportunity to look up state laws in the annotated codes. If you find a court case that seems similar to your situation, you may want to read it. If it seems relevant to your case, point it out to the judge as part of your small claims presentation. See Chapter 24, Section D, for an example. This allows you to access broad subject categories, thus minimizing the risk of overlooking important sections.
If you are sure the other driver must have done something wrong, you might just want to find the vehicle code and scan the whole darned thing. Or if you are in a landlord-tenant dispute and want to know more about your overall rights, the state statute may lay them out for you. The keyword search method is more hit or miss. The last option is a search by statute number.
The state Appendix to this book gives you a list of the statute numbers applicable in small claims courts. Most small claims courts put their rules, forms, and other helpful information online. Stating Your Legal Claim in Court Papers One of the advantages of using small claims court is that you are not required to state theories of law. Instead, you simply lay out the facts of the dispute and rely on the judge to fit them into one or another legal theory of recovery.
All you really need to know to file a small claims case is that you have suffered monetary damage and that the person or business you are suing caused your loss. Look at Line 1. As you can see, there is no space to state a lengthy legal argument. Indeed, there is barely room to describe your dispute and list the date on which it occurred or began.
When you state your case on the court papers, your goal is to notify the other party and the court of the issue in dispute. Your chance to do this will come later, in court. Time to Get Organized Even before you file your case, you should set up a good system to safeguard key records and evidence. One excellent approach is to get a couple of manila envelopes or file folders and label them with the name of your dispute for example, Lincoln vs.
Williams Ford. One folder or envelope can be used to store evidence, such as receipts, letters, names and addresses of potential witnesses, and photographs. The other is for your court papers. Once you get them organized, make sure you store your folders in a safe place. If you read the little pamphlets small claims court clerks hand out, you will learn pretty much what I have just outlined in Section A of this chapter.
While this approach allows you to expend little effort or thought while the judge does the heavy legal lifting, it comes with a huge built-in disadvantage. You are being told to present your case without understanding the legal rules the judge must apply to render a decision. Or put another way, it means understanding your dispute on the same legal terms that a judge will ultimately use to decide it. Defendants need the same legal knowledge as plaintiffs. To defend a case well, a defendant needs to understand the essential legal elements of the case the plaintiff is attempting to prove.
Once armed with this information, the defendant will be in good shape to try to convince the judge that at least one key legal element is missing—and therefore, that the plaintiff should lose. Start by reading the rest of this chapter. It discusses the legal theories most commonly used to establish legal liability. In many instances, this will be all the information you need to properly prepare your case. See Chapter 1, Section D, for more on legal research. Below I list the most common legal theories causes of action and the requirements lawyers call them elements you need to prove to establish each.
As a result, you have suffered a monetary loss. See Section C, below. See Section D, below. Negligence that results in damage to property is covered in Section E1, below. Negligence resulting in a personal injury is covered in Section F, below. See Section E2, below, for cases involving property damage and Section F, below, for those involving personal injury. See Section F, below. In most states you may also be eligible for additional damages if the landlord had no good reason for withholding your deposit or followed improper procedure.
This would be the case if your opponent had broken a consumer protection, landlord-tenant, employment or other law, resulting in your being out some money. See Section H, below. See Section I, below. See Section J, below. Other legal theories exist. In preparing for her day in court, Sue gets several witnesses to testify that her car had been vandalized in the garage and obtains a copy of the police investigation report. She also gets several estimates as to the cost of repairing the damage to the car window and replacing the sound system.
He has never promised to keep the garage locked. In addition, he has never locked the garage or otherwise led Sue to believe that he would do so. As the judge explained to Sue, there was simply no contract giving her the right to park in a locked garage, so under the circumstances the landlord was not legally negligent careless.
The landlord made certain contractual promises to the tenants to keep the garage locked and then failed to keep them in a situation where he had ample opportunity to do so. The failure presumably allowed the thief access to the car. How to Approach a Breach of Contract Case A contract is any agreement between individuals or businesses in which one side agrees to do something for the other in exchange for something in return.
The agreement can be written or oral in most situations , or implied from the circumstances. Contracts made by minors can be disaffirmed found invalid if they are made before the minor turns However, in most states, if a minor makes a contract, then honors it after turning 18, the contract is valid and can no longer be annulled. As every law student learns on the first day of contracts class, a promise to make a gift is not a contract.
Or put another way, an enforceable contract absolutely depends on an exchange—or a promise to exchange— something of value, such as money for services. In contrast to the gift scenario just above, a loan, or a promise to make a loan, is normally a valid contract. The most common type of contract occurs when A agrees to pay money to B in exchange for B agreeing to work for A or provide A with valuable goods.
Here is an example of how a typical contract is formed: Fred calls electrician Ivan and asks him to repair his faulty wiring. The great majority of spoken agreements are valid and enforceable, assuming their existence can be established to the satisfaction of a judge. But there are several major exceptions to this rule.
But this third type of transaction needs very little written proof—a faxed order or a letter confirming a deal will be enough. Because the great majority of oral consumer contracts—whether to fix a kitchen, repair a car, or deliver a bed—can easily be carried out in less than a year even if it actually takes longer , most oral contracts that can be proven to the satisfaction of a judge can be enforced in small claims court. A contract can be implied where one party has obviously benefited from the other and the other expects to be paid for goods or services. This is a tricky area of contract law that occasionally surfaces in small claims cases.
Small Claims Court in California by Warner, Ralph -ExLibrary | eBay
The judge will be particularly interested in evidence that the party who received the benefit knew that the service provider expected to be paid. Example: Next door neighbors Al and Sara agree that it would beneficial to both to construct a wall on the property line between their yards. Al builds the wall over several weekends while Sara watches.
When he finishes he asks Sara to pay for half of the cost of the materials. When Sara refuses, Al sues her in small claims court. The law student outline Contracts, by Melvin A. Proving and Defending Contracts Involving Unpaid Debts Every business day, thousands of Americans are sued in small claims court for failing to pay the phone company, the local hospital, a friend now a former friend, undoubtedly , a fine to the public library, or some other debt.
See Chapter 19 for more on small claims suits for money owed. How to convince the judge that a loan contract existed. If you lent a defendant money under the terms of a written agreement, simply bring the agreement to court. For example, if you wrote the debtor a check, bring a copy. But if you suspect the defendant will claim you never advanced him any money—or that if you did, it was a gift—it would be helpful to have a witness who heard the defendant promise to pay you soon or ask you for more time to pay. Claims of sloppy, dangerous, or late work are particularly common.
Damages resulting from a breach of contract are normally not difficult to prove. Example 1: Justine and Bob planned a June wedding. Because the families of both prospective spouses were widely dispersed, this was to be a combination family reunion and wedding. The couple planned a large reception and arranged to have it catered by Top Drawer Deli. The Deli prepared an order listing food and drink, and Justine signed it. When the big day arrived, everything went swimmingly, until the guests arrived at the reception to find that, while the band was playing cheerfully, Top Drawer had not shown up with the food and bubbly.
Fortunately, the best man hopped into his SUV, drove to the nearest liquor store, and in less than an hour was back with 10 cases of champagne. Clearly there was a reason he was picked as best man. Someone else had the presence of mind to order 30 pizzas. Three hours later, Top Drawer showed up full of apologies. A key employee called in sick and their van broke down. Justine and Bob accepted the cake and nothing else. When the bill came, they paid for the cake and told Top Drawer to eat the rest. The judge ruled that by being three hours late to a time-sensitive event, the caterer had breached its contract, so Bob and Justine owed nothing.
The judge then dismissed the emotional distress claim after remarking that the reception obviously turned into an unforgettable party. Example 2: Assume the same facts above, except that Top Drawer showed up only 20 minutes late, because its van had a flat tire. Top Drawer also called from the roadside to say they would be there soon. Although the delay caused the bride and groom and their parents additional stress, the guests barely noticed and the party was a success.
Nevertheless, when Top Drawer submitted its bill, Bob and Justine only paid half, claiming their contract had been breached due to the late delivery. This time the judge ruled for Top Drawer, stating that under admittedly difficult circumstances the spirit if not the letter of the contract had been met. Get an expert if the issue is whether professional or technical work was done properly. Thus, if another dentist, mechanic, or electrician is willing to testify that the first one did substandard work, and that the work resulted in you suffering a monetary loss, you should have a good chance of winning.
See Chapter 15 for a full discussion of the crucial role an expert opinion can play in resolving your dispute. Proving and Defending Contracts Involving Defective Products Most small claims lawsuits over defective products claim that a written or implied warranty has been broken. See Section D, below, for a full discussion of warranty issues. If the contract is in writing, this can be as easy as bringing it to court and showing it to the judge. Defendants will want to look for a substantial defect in the contract. For example, a defendant could argue that the contract term was over and the contract no longer in force; that the plaintiff broke the contract first; or that the plaintiff seeks to unfairly rely on a technicality and is therefore acting in bad faith.
The example below illustrates one situation where the plaintiff believed a contract existed, but the defendant proved otherwise. The reason was simple: There was no longer a contract between Ben and John. As discussed in Chapter 9, sometimes a plaintiff sues an individual business person when in fact he or she should have sued a corporation or limited liability company LLC. Acme, by accepting the jacket, clearly implied it would properly clean the jacket, so there was no question that a contract existed. And certainly Sid was very convincing as to his loss when he stood in court and tried to wriggle into his pygmy jacket whose sleeves now barely passed his elbows.
Unfortunately for Sid, he had overlooked one big thing: He had sued the wrong defendant. His specialized cleaning process should have resulted in no such shrinkage. To determine what happened, he sent the jacket to an independent testing laboratory.
Their report, which he presented to the court, stated that because the leather had been severely overstretched prior to assembly, it was the jacket itself, not the cleaning, that was the problem. As a result, the judge ruled that Acme had not breached the cleaning contract and suggested that Sid sue the person who sold him the coat for breach of warranty see Section D, below. This is usually a two-step process, especially if the case is vigorously defended. This second task should be easy if Alan simply sold the cards and pocketed half the money. However, your task will be harder if Alan gets up and testifies that after difficulty selling the cards, he both faxed and emailed you asking for a higher commission, and that after receiving no objection, he redoubled his efforts and finally found a buyer.
If you end up as a defendant in a breach of contract lawsuit, it may be appropriate for you to claim that although a contract existed, the plaintiff broke it first. If this is the case—and assuming the breach of contract was serious material —you are legally excused from continuing to perform your contractual responsibilities. If Helmut later sues Wolfgang for breach of contract, claiming Wolfgang knew Helmut was having money troubles and would pay eventually, Wolfgang should win. Both parties to a contract must act fairly and in good faith. This requirement helps explain why it is always wise to give the other party a chance to fix a minor breach of a contract before filing a lawsuit.
Everybody's Guide to Small Claims Court in California
When you present your case, you want to be sure a judge will conclude that you sincerely tried to carry out the spirit, as well as the letter, of your agreement. After getting through about half the work, Leah pulled her crew off the job to finish up another remodel that was overdue.
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In the meantime, Carlos was left with an unusable kitchen. You have to state this figure when you file your small claims case. I discuss this issue in Chapter 4. Breach of warranty—based on a written or oral contract—is covered in Section D, below. How the violation of a state or federal law can make a contract unenforceable is covered in Section H, below. Leases and rental agreements—specialized types of contracts—are covered in Chapter How to collect on contracts involving unpaid bills is covered in Chapter How to Approach a Breach of Warranty Case In Chapter 18, I discuss warranties as they apply to problems with new and used cars, as well as lemon laws.
Warranty law is extremely confusing, even to lawyers. This is true even if the written warranty printed on the package states there are no other warranties. This warranty exists in addition to the written and oral or express warranties discussed just above. In addition, every state has a commercial code, which includes similar laws regulating retail sales and warranty protections for consumers.
Some states have enacted separate consumer protection and warranty laws that go beyond the Magnuson-Moss Act and these commercial codes. If you believe a warranty has been breached—for example, a TV set with a sixmonth warranty on parts and labor breaks the day after purchase—you should notify the seller and manufacturer in writing, keeping copies of both letters. Give them a reasonable chance to make necessary repairs or replace the defective product. Thirty days to accomplish this is usually considered to be reasonable.
In considering whether and how to pursue a breach of warranty case, you should realize that many small claims court judges often evaluate warranty disputes based on their own broad view of what is fair under the circumstances. But do be prepared to document the statement warranty of the seller that you relied on. He fully explains his high-end bookkeeping needs to the salesperson and is assured that the computer and software will do the job.
The computer contains a written warranty against defects in parts and labor for 90 days. The warranty statement says that all implied warranties are disclaimed. The software contains no written warranty statement. Alan calls ABC and asks for the computer to be fixed or replaced and for his money back on the software. When ABC ignores him, Alan sues in small claims court. As to recovering for the computer, Alan should have no problem—it failed within the written warranty period. How should he do this? Negligence A technical definition of negligence could—and does—fill entire law texts.
Like good taste or bad wine, negligence seems to be easy to recognize, but hard to define. In addition, negligence can occur when a person who has a duty or responsibility to act fails to do so. For example, an electrician who fails to check the wiring in a room where you told him you saw some funny sparks and he promised to have a look would be negligent.
Jake will lose, because he did not act with reasonable care under the circumstances. Another obvious situation involving negligence would be one where a car or bus swerves into your driving lane and sideswipes your fender. The driver of the offending vehicle has a duty to operate it in such a way as to not harm you.
By swerving into your lane, the driver violated his duty. Negligence is more difficult to show, however, if the signs of carelessness are less obvious. Here you have to be ready to prove that, for some reason such as age, disease, or an obviously bad root system , the tree was in a weakened condition, and the neighbor was negligent in failing to do something about it.
Compound negligence exists where more than one person is responsible for the damages you suffer—for example, if you are injured because you fall down a staircase with no hand railing, after someone who is not paying attention to where she is going runs into you. When dealing with any situation in which more than one person may have contributed to your loss, Rule 1 is to sue them all.
Fred admits his vehicle knocked over the fence when his brakes failed. To Sandy, this may at first seem like a simple case involving filing suit against Fred, but what if Fred had just picked up his car from Atomic Auto Repair, where he had his brakes worked on? Sandy would be well advised to sue both Fred and Atomic and let the judge sort out who is most at fault. Again, Sandy would be wise to sue both parties and let the judge decide who was most at fault. There is often no fool- proof way to determine in advance whether someone will be judged to be negligent.
If you have suffered a real loss and think someone else caused it, bring your well-prepared case and let the judge decide. Or to put it another way, would you have behaved differently? If you believe the person who caused you to suffer a monetary loss behaved in an unreasonable way ran a red light when drunk and that you were acting sensibly driving at 30 mph in the proper lane , you probably have a good case.
Thus, if a judge finds that one person drunk and speeding was 80 percent at fault, and the other slightly inattentive was 20 percent at fault, the slightly inattentive party can recover 80 percent of his or her damages. More information about negligence. Or, even easier, if you are near a law bookstore, buy a copy of one of the several competing paperback summaries of torts that law students actually rely on to get through their torts exams for example, Torts, by Marc A.
Intentional Acts Not all injuries to people or property are accidents. You also have the right to recover money damages from someone who intentionally damages you or your personal property. I cover personal injuries in Section F, below. When Basil took first place in the local garden club contest for his exotic roses. Basil should be able to recover the value of his roses from Shirley.
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In theory, at least, it is also possible to recover punitive damages additional money awarded to punish the defendant if you are damaged by the malicious conduct of someone else. However, in part because public sentiment is running strongly against punitive damage awards, they are seldom awarded.
Nevertheless, Basil, in the above example, might be tempted to sue Shirley for more than the cost of replacing the roses, based on her bad conduct. In short, if you believe you really might recover punitive damages, you should almost always file your case in a formal court, asking for lots more money than the small claims limit. But suppose you are convinced you deserve punitive damages and want to sue for an extra few thousand dollars assuming the small claims limit in your state is high enough.
First, check your local court rules. If you find no prohibition, go ahead. The worst the judge will do is to allow you actual damages, while denying your claim for punitives. More material on property damage: To determine how much to sue for, see Chapter 4, Section C2. How to Approach a Personal Injury and Mental Distress Case I treat personal injury cases in this separate section because so many people look at them as a different kind of lawsuit.
In fact, most personal injury cases are based on a claim that someone has been negligent and a few are based on claims of intentional injury. The legal theories involved are the same as set out in Section E, above. Most personal injury cases involve amounts of money that exceed the small claims maximum and should therefore be pursued in formal courts. However, occasionally a minor personal injury case will be appropriate for small claims. Example 1: Jenny and Karen are playing softball in a picnic area of a park, where many families are picnicking in the sun. Jenny, never a star fielder, misses a batted ball that hits seven-year-old Willie in the face and chips his tooth.
Because Willie was in a picnic area where he had a right to be, we can safely assume that Jenny and Karen were careless negligent. Because as a society, we have decided that picnic areas are for picnickers—not ballplayers. Example 2: Now assume that Jenny and Karen have moved over to a ball field. Are Jenny and Karen liable? Probably not. Jenny and Karen took reasonable precautions to avoid hitting picnickers by playing on the ball field.
While they may have a responsibility to get little Willie off the field if they spot him, they are probably not legally responsible— that is, negligent—in a situation where he wanders onto the field unnoticed. So this time a small claims judge is likely to award nothing to Willie. Consider not only your loss, but whether the other party acted reasonably under the circumstances.
Before you sue someone for injury, consider whether it was really caused by their negligence. If so, the person is legally liable to make good your loss. If not you trip and fall down a perfectly safe set of stairs , you have no right to recover, no matter what your injury. A major exception applies if you were injured by a defective product; see Section G, below. If in doubt, go ahead and sue, but be prepared to deal with the liability question, and to show the extent of your injury. In Chapters 15 and 16, I give you some practical advice on how to prove your case.
Invasion of privacy and the intentional infliction of mental distress are but two of the types of lawsuits that can be based on nonphysical injuries. Example: Your landlady enters your apartment several times without notice, permission, or good legal reason. You make it clear that this behavior is highly upsetting and ask her to stop invading your privacy. She nevertheless persists in entering your apartment with no good reason, causing you to become genuinely upset and anxious. You file a small claims case based on the intentional infliction of mental distress. Assuming you can convince the judge that you were truly and seriously upset, your chances of winning are good.
Obviously, not every instance of antisocial behavior that makes you mad justifies bringing a lawsuit. Therapy bills or perhaps evidence of your lost sleep would be good evidence to present to the judge. Damages for pain and suffering are not allowed in many states. More material affecting personal injuries. To figure out how much to sue for in personal injury cases, see Chapter 4, Section C4. Because of the large sums of money often involved, most product liability cases will end up in formal court.
Now and then, however, a defect in a product will cause an injury small enough that the damage caused falls within the small claims court maximum. If you find yourself in this situation, it is best to sue both the manufacturer and the seller. Be prepared to prove that the product really did malfunction and that you were injured as a result. Everything from the construction of home swimming pools to regulation of retail sales, the moving of household goods, and the types of contracts that you can be offered by health clubs are covered. These laws are too extensive to outline here; however, be aware that if a provider of goods or services has violated one of these laws, you may be able to cancel your deal with no obligation to pay.
One of the most routine consumer complaints for which specific laws provide remedies is that advertising was false or deceptive. In general, these laws provide that private parties may recover the money they spent for falsely advertised goods or services. Another common type of consumer protection law involves a cooling-off period, usually a three- to five-day period, during which you can cancel a purchase agreement. For example, the Federal Trade Commission imposes a three-day cancellation period for door-to-door sales 16 C. You must be given notice of your right to cancel and a cancellation form when you sign the purchase contract.
If you have not been properly notified of your right to cancel, you can raise this as a defense in small claims court. Most require that the manufacturer either fix the car or refund the purchase price.
For more on motor vehicle purchases and lemon laws, see Chapter In addition to the specific consumer protection rights embedded in literally thousands of state laws, there are several general legal rules you should know about. One of the most important of these deals with fraud. Generally speaking, if a transaction is fraudulent, the deal can be canceled. Fraud can take the form of intentional misrepresentation, negligent misrepresentation a statement about a product or service made without adequate information that it is true , fraudulent concealment hiding a key fact , a false promise a promise with no intention to fulfill it , or any other act designed to deceive.
If you think you have been defrauded, make sure the judge knows about your contention. Not all small claims courts will allow actions for fraud or requests to rescind contracts. In some states, you have to file actions based on fraud in a formal court. Professional Malpractice An increasing number of small claims cases are being filed against doctors, lawyers, accountants, and other professionals. The main reason is that it can be difficult or impossible to get lawyers to represent you in a formal court action.
Lawyers accept only one in 20 medical malpractice cases, according to one study. As a result, the injured person must decide to either file without a lawyer in formal court or scale down the dollar amount of the claim to fit into small claims court. This one is automatically taken care of as long as you really were a patient or a client. This one can be tougher to prove. But in the legal field, the causation issue can be tricky, especially if a failed lawsuit is involved.
In other words, you need to convince the judge your underlying lawsuit was a winner. Example: You consult a lawyer about an injury you suffered falling downstairs at a store. The lawyer says he will file a case on your behalf, but forgets to do so before the one-year Statute of Limitations runs out. You sue your lawyer in small claims court. This means convincing the judge that, in fact, your case against the store was a winner and that your injuries were serious enough to qualify for the amount of money you are requesting.
Berman-Barrett Nolo , explores how to bring a malpractice case in formal court. A private nuisance occurs when someone prevents or disturbs your use or enjoyment of your property. If, after you ask that the dog be kept quiet, the barking persists and causes you real discomfort, you can sue. A public nuisance, by contrast, is an act that causes a group of people residents of a particular neighborhood, for example to suffer a health or safety hazard or lose the peaceful enjoyment of their property—for example, if planes suddenly begin flying low over a neighborhood or a chemical plant lets toxic fumes drift over neighboring property, causing people to become ill.
Public nuisance suits are often initiated by groups of individuals all filing suits at more or less the same time. One fairly common example of this involves multiple small claims lawsuits against neighbors, or their landlords, who sell drugs. See Chapter 8, Section C, for more about these socalled class actions. If you want to know more about the law of nuisance generally, locate one of the several law student course summaries on the field of torts.
These are available at specialty law book stores and law libraries. Try mediation before filing a lawsuit against a neighbor. It is very difficult to put a dollar value on lawsuits against neighbors for antisocial acts, no matter how annoying. In addition, filing suit usually makes long-term relationships worse. For these reasons, I believe disputing neighbors should always try mediation before turning to small claims court.
See Chapter 7 for more on mediation. This is the shortest chapter and the most important. In it, I ask all of you who are thinking of filing a Small Claims suit to focus on a very simple question: Can you collect if you win? There are many legal ways for a debtor to protect a long list of assets from creditors armed with court judgments.
What do these facts mean to you? So a big key to deciding whether to file a small claims case should be figuring out whether you can collect any judgment you win. How can you tell ahead of time? So if the person sued gets most of his income from one of these sources, red flags should definitely be flying.
But what about other assets? Sure—bank accounts, stocks and bonds, motor vehicles, and real estate are other common collection sources. But remember, many types of personal property are exempt from attachment. Net earnings are total earnings less all mandatory deductions for such items as withheld income taxes and unemployment tax. Or, might the defendant become solvent in some other way: win the lottery, inherit money, or win a personal injury lawsuit, for example? If the answer is no, is there a readily available cash source you can reach, such as a cash register, or does the business own assets, such as valuable office equipment, which you can order attached and sold?
Beware of bankruptcy. If a person or a business declares a straight bankruptcy under Chapter 7 of the Federal Bankruptcy Act and lists you as a creditor, your right to recover a small claims court judgment is cut off, just as if you were any other creditor but if your judgment was based on a secured loan, you do have the right to recover the property pledged as security.
One big exception to this general rule exists if the judgment was obtained because you or your property was injured by the malicious behavior of the person declaring bankruptcy. In this situation, your right to collect your judgment should survive the bankruptcy but you may need to intervene in the bankruptcy proceedings. An example of malicious behavior would be someone getting drunk and then attacking and injuring you.
Chapter 25 explains the mechanics of collecting after you get your judgment. With some exceptions, small claims courts do not hear cases unless they are for money damages.
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Often called by their centuries-old names, such as rescission, restitution, reformation, and specific performance, these remedies are discussed in Section E of this chapter. In some states, a landlord can use small claims court to evict tenants in certain situations. See Chapter 21 and the Appendix for more information. Costs for filing and serving papers are recoverable in addition to the dollar limit in most states.
It is possible to represent yourself in formal court, but doing so requires a good bit of homework and the fortitude to walk into an unfamiliar and sometimes hostile arena. If you do plan to go it alone, see Recommended Reading, just below. Check out the court just above small claims. In most states, there are several levels of courts, with different monetary limits. It explains in detail what papers to file, how to conduct pretrial discovery and what to do when you finally get your day in court. Splitting Small Claims Court Cases It is not legal to split one over-the-limit claim into two or more lawsuits to fit each into small claims court.
As with most rules, however, a little creative thought can sometimes point the way to an exception. This, of course, is where the creativity comes in. The worst that will happen is that a judge will disagree and tell you to make a choice between taking your entire case to a formal court, or reducing your claim to fit within the small claims dollar limit.
But beware of rules limiting the number of lawsuits that you can bring. One claim, he said, was for failure to pay for phone installation, another was for failure to pay for phone maintenance, and the third was for failure to pay for moving several phones to a different location. The man claimed that each suit was based on the breach of a separate contract. The judge, after asking a few questions, told the man that he was on the borderline between one divided not acceptable and several separate acceptable claims, but decided to give him the benefit of the doubt and allowed him to present each case.
Think twice before filing separate but related claims on the same day. If you split an overthe-limit claim, you may want to file your separate claims a few weeks apart— that way, they will be heard on different days and, in most metropolitan areas, probably by different judges. Unless the defendant shows up and argues that you have split one claim, you will likely get your judgments without difficulty. There is, however, one possible drawback to this approach. If you bring your claims to court on the same day and the judge rules they are really only one claim, you will normally have a choice to either waive the excess over the small claims maximum in your state or go to a formal court.
However, if you go to court on different days and the question of split claims is raised on the second or third day, you may have a problem. If the judge decides that your action in splitting the claims was improper, he or she may throw the second and third claims out of small claims court without giving you the opportunity to refile in a formal court. This is because you have already sued and won, and you are not entitled to sue the same person twice for the same claim.
How to Compute the Exact Amount of Your Claim The exact dollar amount to sue for is often easy to determine—but not always. Ask to amend your claim if you belatedly discover you should have requested more. If you find yourself in court and belatedly realize you have asked for too little, request that the judge allow you to amend your claim on the spot. Some judges will do this and, at the same time, offer the defendant extra time to prepare to defend against the higher claim.
Computing the Exact Amount—Contract Cases To arrive at the exact figure to sue for in contract cases, compute the difference between the amount you were supposed to receive under the contract and what you actually received. Court costs, which can be added to your judgment, are discussed in more detail in Chapter Unfortunately, some claims based on breach of contract are hard to reduce to a dollar amount.
As with so much of law, the concept behind the mumbo jumbo is simple. Tillie the tenant moves out three months before the end of her lease remember, a lease is a contract. Maybe not. In many states, the law requires Larry to try to limit or mitigate his damages by taking reasonable steps to find a new tenant. More typically, it might take Larry several weeks or months unless he had plenty of advance notice, or Tillie lined up an acceptable tenant for him to find a suitable new tenant.
For more on landlord-tenant conflicts, see Chapter Landlords are not required to mitigate damages in every state. In other states, case law on this issue is unclear. The mitigation of damages concept applies to any contract in which the person damaged can take reasonable steps to limit his or her losses. However, in court, Homer likely would be asked whether he had earned any other money during the six days.
Loan Contracts How much should you sue for if you lent money to a person who promised to repay it but failed to do so? As a general rule, you can only recover interest when it is called for in a written or oral contract. Special rules apply to installment loans. If you are owed money under the terms of a promissory note contract that calls for repayment to be made in installments, you are normally only entitled to recover the amount of the payments that have already been missed with interest, if it was specified in the contract.
Extra Damages for Bad Checks In some situations, a statute law gives you the right to receive extra damages, over and above the amount of the financial loss. The most common of these involves bad checks or checks on which the writer stops payment in bad faith. The majority of states have bad check laws, which allow you to recover the amount of the check plus a penalty of two or three times the amount of the check if the person giving it to you does not make it good within the time period allowed by the statute—usually within 30 days of your written demand to do so.
In some states, such as California, this law is mandatory—the judge must award the penalty. If someone gives you a bum check or stops payment on a check and you want to try to collect damages, send him or her a letter by certified mail demanding payment of the amount of your bad check plus any applicable service charge, plus your mailing costs. Wait at least 30 days before filing suit, in order to give the check writer time to pay. Cover your back if you stop a check payment. If you yourself write a check and then stop payment because you believe that the services or goods you purchased were substandard or never provided , write a letter to the serviceperson or vendor stating in detail why you were dissatisfied.
If you are later sued, your letter will serve as part of your defense. Computing the Exact Amount—Property Damage Cases When your property has been damaged by the negligent or intentional act of someone else, you usually have the right to recover the amount of money it would take to fix the damaged item. How much can Melissa recover? Melissa should get several estimates from responsible body and fender shops and sue for the lowest amount. There is, however, a big exception to this rule. This occurs when the cost to fix the item exceeds its market value.
Simply put, you are not entitled to a new or better object—only to have your loss made good. Had Melissa Caretaker been driving a Dodge, the cost to fix the fender might well have exceeded the current market value of her car. If this was the case, she would be entitled to the value of the Dodge, not what it would cost to repair it. In short, the most you can recover is the fair market value of the damaged item the amount you could have sold it for figured one minute before the damage occurred. No one knows exactly how much any used item is worth.
Recognizing that reasonable minds can differ, it makes sense to place a fairly aggressive value on property that has been destroyed. Knowing what something is worth and proving it are quite different. The best way to do this is to get some estimates opinions from experts in the field a used car dealer if your car was totaled.
One way to present this type of evidence is to have the expert come to court and testify, but, in most small claims courts, you can also have the expert prepare a written estimate, which you then present to the judge see the sample letter in Chapter 15, Section D. Depending on the type of property involved, you may also want to check newspaper and flea market ads for the prices asked for comparable goods and submit these to the judge. And of course, there may be other creative ways to establish the dollar amount of the damage you have suffered. Many people insist on believing they can recover the cost of getting a replacement object when theirs has been totaled.
Two reasons: First, disputes involving clothing are common in small claims court, and judges often apply a logic to them that they apply to no other property damage cases. The reason for this is that clothing is personal to its owner and often has little value to anyone else, even though it may be in good condition. When suing for damage to new or almost-new clothing, it follows that you should sue for the amount you paid.
If the damaged item has already been worn for some time, sue for the percentage of its original cost that reflects how much of its useful life was gone when the damage occurred. Rudolph cut part of the back of the coat in the wrong place and ruined it. How much should Wendy sue for? She could probably expect to recover close to this amount.
Example 2: The same facts as just above, but the coat was two years old and had been well worn, although it was still in good condition. Whether she could recover that much would depend on the judge. Most would probably award her a little less on the theory that the coat retained some value. Computing the Exact Amount—Personal Injury Cases Lawyers quickly take over the great majority of cases where someone is injured. So before filing even a minor personal injury case in small claims court, be sure you check your local rules.
Try to settle or mediate your personal injury claims. Many people successfully negotiate or mediate a satisfactory settlement with an insurance company. Matthews Nolo. Despite the potential drawbacks, some small personal injury cases do end up in small claims court. Dog bite cases are one common example.
The amount of the medical and hospital bills, including transportation to and from the doctor, are routinely recoverable as long as you have established that the person you are suing is at fault. However, if you are covered by health insurance and the insurance company has already paid your medical costs, you will find that your policy says that any money you recover for these costs must be turned over to the company.
Knowing this, many judges are reluctant to grant judgments for medical bills unless the individual can show that he or she is personally out of pocket for the money. Loss of pay. Loss of pay or vacation time as a result of an injury is viewed in a similar way. If the cocker spaniel down the block lies in wait for you behind a hedge and grabs a piece of your derriere for breakfast, and as a result you miss a day of work getting yourself patched up, you are entitled to recover your loss of pay, commissions, or vacation time.
However, if your job offers unlimited paid sick time, so you suffer no loss for missing work, you have nothing to recover. Pain and suffering. But suppose you are in a state that allows recovery for pain and suffering and you have suffered a minor, but painful, injury that you do want to file in small claims— how much should you ask for? There is no one right answer. Example 1: Mary Tendertummy is drinking a bottle of soda pop when a mouse foot floats to the surface. She is immediately nauseated, loses her lunch, and goes to the doctor for medication.
This will probably be considered reasonable and, depending on the judge, she could recover most of this amount. But instead of losing his lunch, he just tosses the soda pop away in disgust and goes back to work. How much is he likely to recover? Probably not much more than the price of the soda pop—he apparently suffered little or no injury. Property damage. Often a personal injury is accompanied by injury to property. For example, a dog bite might also ruin your pants.
If so, include the value of your damaged clothing when you determine how much to sue for. For information on how to place a dollar value on your property, see Sections C2 and C3, above. For information on how to negotiate with an insurance company without being skinned—and how to decide how much to sue for if negotiations prove unsuccessful—I recommend How to Win Your Personal Injury Claim, by Joseph L.
This book thoroughly discusses how to put a dollar value on injuries in the context of developing a strategy to successfully negotiate with an insurance company. When the defendant is wealthy, these damages—which are designed to punish the defendant—can run into the millions. If you believe you have been injured by conduct wretched enough to support a claim for hefty punitive damages, see a lawyer. Computing the Exact Amount—Emotional or Mental Distress As noted in Chapter 2, in our increasingly crowded urban environment, there are all sorts of ways we can cause one another real pain without making physical contact.
For example, if I live in the apartment above you and pound on my floor your ceiling for an hour at a. What can you do about it short of slashing my tires? One remedy is for you to sue me in small claims court based on the fact that my actions constitute the intentional infliction of emotional distress. But how much should you sue for? It depends on how obnoxious my behavior is, how long it has gone on, and how clearly you have asked me to stop this should be done several times in writing. Try mediation first when neighbors are involved. The process of filing, preparing, and arguing a lawsuit tends to make people madder than they were before.
Computing an Exact Amount—Malpractice Cases In theory, most malpractice cases are worth far more than can be awarded in small claims court. Special rules for legal malpractice. You may need to do more research. For example, Alabama, Arizona, California, Louisiana, Maine, and Nebraska expressly allow equitable relief in small claims court. Example: You purchase aluminum siding from a catalogue.
When it arrives, you see that the siding is a different color—and an inferior quality—than the siding pictured in the catalogue. The company refuses to refund your money. In court, you could ask that the contract be rescinded, and your money returned. Restitution: This important remedy gives a judge the power to order that a particular piece of property be transferred to its original owner when fairness requires the contracting parties be restored to their original positions.
It can be used in the common situation in which one person sells another a piece of property say a motor scooter and the other fails to pay. Instead of simply giving the seller a money judgment that might be hard to collect, the judge has the power to order the scooter restored to its original owner. Where money has been paid under a contract that is rescinded, the judge can order it to be returned, plus damages.
Thus, if a used car purchase was rescinded based on the fraud of the seller, the buyer could get a judgment for the amount paid for the car, plus money spent for repairs and alternate transportation. Reformation: This remedy is somewhat unusual. It has to do with changing reforming a contract to meet the original intent of the parties when some term or condition agreed to by the parties has been left out or misstated and fairness dictates the contract be reformed.
Reformation is commonly used when an oral agreement is written down incorrectly. They then write a contract, inadvertently leaving out the number of pages. In filling out your court papers, you will still be required to indicate that the value of the item for which you want equitable relief is under the small claims maximum see the Appendix. That is, they can order a party to perform, or stop, a certain act or else pay a money judgment. The buyer fails to pay, and you sue. These are called statutes of limitations.
Time limits are different for different types of cases. If you wait too long, your right to sue will be barred by these statutes. Why have a statute of limitations? Because disputes are best settled relatively soon after they develop. Memories fade and witnesses die or move away, and once-clear details tend to become blurred. Statutes of limitations are almost always at least one year, so if you file promptly, you should have little to worry about. Act fast for claims against government entities. To sue a city, county, state, or governmental agency for example, a school district , you first must promptly file a claim with the people in charge the school board, county board of supervisors, city council.
Often, your administrative claim must be filed within three to six months after your loss occurred, or you are out of luck. Statute of Limitations Periods I include here a table of statutes of limitation periods for four of the most common types of lawsuits. But you will probably need to do further legal research. And the time limits on our table may not cover every situation. For example, claims involving medical malpractice, eviction, child or spousal support, fraud, product liability, consumer sales contracts, or faulty work by builders may all have different statutes of limitations.
And some states distinguish between different types of property usually real and personal property when establishing statutes of limitations. You will find your state laws online at www. See Chapter 1, Section D, for more on how to do legal research. Code Ann. Code Art. Laws ch. Codified Laws Ann. Some contracts that you assume to be oral may actually be written.
People often forget that they signed papers when they first arranged for goods or services. See Chapter 2, Section C, for more about contracts. Small Claims and Traffic Courts: Case management procedures, case characteristics, and outcomes in 12 Urban Jurisdictions. Guild Rev. Nims, Forum and Century, , p. O'Rourke, Sean Patrick. Boston Globe. Part two asserts that "the 'people's court' has become the collectors' court," in that small claims courts ignore the rights of defendants in favor of collection agencies and businesses. Part one illustrates the hardships suffered by debtors, and notes that defendants often do not receive notice because courts provide outdated contact information to plaintiffs.
Bradway and preface by William H. Taft, Chief Justice of the U. Law Library Advisory Committee. Small Claims Court Resources.