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					     SMALL CLAIMS COURT: AN INSIDER'S GUIDE TO WINNING BIG




Small Claims Court: an Insider's Guide to
              Winning Big


                           By Michael David

          © 2012. All Rights Reserved by TastyPlacement, Inc.




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                SMALL CLAIMS COURT: AN INSIDER'S GUIDE TO WINNING BIG




Table of Contents
Introduction and Preface 3

Chapter 1: Evaluating Your Case 8

Chapter 2: How to Get Help With Your Case 22

Chapter 3: Specific Types of Cases and Claims 25

Chapter 4: Procedural Matters: The Statute of Limitations, Jurisdiction, and More 45

Chapter 5: Demand Letters and Settling Your Case 53

Chapter 6: Who Can Sue, and Who Can Be Sued 72

Chapter 7: The Birth of a Lawsuit: Filing (and Answering) the Complaint 76

Chapter 8: Giving Notice to Your Opponent: Serving the Complaint 84

Chapter 9: Subpoenas, Witnesses, and Evidence 88

Chapter 10: The Hearing and Oral Presentation 100

Chapter 11: Appealing the Judgment 115

Chapter 12: Collecting (or Avoiding the Collection of) a Judgment 117

Chapter 13: Small Claims Court Summaries for All Fifty States 149




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                 SMALL CLAIMS COURT: AN INSIDER'S GUIDE TO WINNING BIG




Introduction and Preface
If you’ve bought this book, you probably already know a bit about small claims courts. Small claims
courts are courts of limited monetary jurisdiction that are utilized for the resolution of smaller
disputes. The monetary limit in small claims courts varies by state. On the low end, Massachusetts
allows awards of up to $2,000, while on the high end, Tennessee allows awards of up to $25,000 in
some of its counties. Generally, most states allow awards of around $3,000 to $5,000.

You probably also know that small claims courts operate much more informally and more simply
than regular civil courts, and decisions are speedy. The entire process, from filing a claim, to
getting a hearing, to getting a judgment (or losing and getting nothing) can usually be
accomplished in 60 days. In a regular civil court, litigants rarely can get to trial within a year and a
half from filing.

Like most Americans, you’ve probably seen one or more of the television shows that showcase
small claims cases. These shows are obviously not real courtrooms; they are arbitrations and the
awards are real. The conduct of these televised “trails” is actually quite close to what one might
see in a real small claims case--and we recommend watching those shows as a "warm up" for your
own case. The level of formality in the televised trials is fairly accurate, and the judge’s degree of
inquiry into the facts is also fairly equivalent. One of the pieces of information I will offer here is
that if you have a pending small claims case, you should attend a small claims case and observe
the conduct.

    Definition: Plaintiff

    A plaintiff in a lawsuit—small claims or otherwise—is the party that is seeking
    relief by bringing the legal action.

If you’re a plaintiff in small claims court, you are going to get about ten minutes to speak. If you
are a defendant, you are going to get about the same. Sometimes, a case will be more complex,
and will take a bit longer. Also, only about 80% of the defendants bother showing up. Defendants
who don’t show up will lose their case by “default.”



Easy Liability, Low Damages
There are two very important insights that I want to put forward regarding small claims court. The


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                 SMALL CLAIMS COURT: AN INSIDER'S GUIDE TO WINNING BIG




first is that small claims courts tend to favor plaintiffs. In fact, as a lawyer advising small claims
litigants, I would often jokingly refer to small claims court as “plaintiff’s court.” There are a few
reasons for the plaintiff’s advantage. First, the speed and ease of entry to the court is an obvious
advantage. If a plaintiff is forced to bring his or her claim in a standard civil court, the defendant
can maneuver for months or years to avoid judgment. In civil litigation it is the plaintiff that wants
to move the matter forward as quickly and easily as possible. Conversely, the defendant will
usually want to slow the matter down, and complicate the legal process as much as possible; this
frustrates the plaintiff’s attempt to get an award. There is another side, however, to the plaintiff’s
advantage, and that is that small claims courts tend to keep damages low. Small claims courts tend
not to extend damages into areas of consequential damages, the courts tend to stick to the
tangible, easily provable damages. In this respect small claims courts honor the principle of “easy
liability, low damages.” If your case relies heavily on consequential or intangible damages, you
should consider seeking redress in an upper court.

    Definition: Defendant

    The Defendant is the party that opposes a plaintiff in a lawsuit. The plaintiff in a
    lawsuit seeks compensation from a defendant.

The second insight into small claims court that I want to put forward is that in my experience small
claims court judges have a natural bias in favor of plaintiffs. This bias is understandable. Truly, most
plaintiffs in small claims court have been wronged to some degree. Beyond that, by the time the
plaintiff gets to court, he or she has probably endured some unpleasant wrangling with the
defendant. Defendants have a natural tendency to appear and act evasively. So, generally, small
claims judges will strain to find a way to get the plaintiff some sort of award.

In my experience there exists a small minority of small claims judges that are simply poor
adjudicators, or worse. Small claims judges are not particularly well paid, nor particularly well
respected by their peers. They are just people, and they possess all the faults, limitations, and
prejudices of ordinary folks. They take those limitations with them to work. And, even if the judge
is thoughtful and competent, he or she will be overworked, and there is precious little time to hear
every facet of every case. All this adds up to an inherent unreliability in small claims decisions.
We’ll talk about the unreliability of decisions throughout this book, and how to deal with it.

In California, a defendant can appeal a small claims judgment brought against him, while a plaintiff
cannot—the plaintiff only gets one shot. As a young lawyer in San Francisco, I occasionally
represented clients in small claims appeals at the Superior Court level. The Superior Court judges
are more experienced and more thoughtful than small claims court judges. In the small claims
appeal cases that I tried before the Superior Court, I recall clearly that I won two of the three
cases. The Superior Court rulings were “reversals,” decisions that reversed the order of the small
claims court judge. The litigants that opposed me in all three cases were absolutely convinced of


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                 SMALL CLAIMS COURT: AN INSIDER'S GUIDE TO WINNING BIG




the strength of their position and were absolute certain they would win. It’s likely that their victory
before the small claims judge gave them confidence in the strength of their cases.

My clients’ success rate is obviously not a scientifically significant sample. The actual reversal rate
of small claims judgments in San Francisco is likely more like 25%--recall that in California only
defendants can bring appeals from small claims court. That’s a fairly dismal statistic; it means that
many litigants are getting bad or unfair rulings in the small claims court. These reversals also
highlight the “plaintiff bias” of the small claims court—the Superior Court does not always share
that bias. The high reversal rate on appeal also shows the inherent unreliability of small claims
awards.

So, small claims courts are not perfect. But the idiosyncrasies of the small claims court can perhaps
be used to your advantage. For example, assume that you have a plumbing business and you did
some work for a client and the client didn’t pay you. On the other hand, assume that the client is
complaining of a gouge in his granite counter top, and he claims that you made the gouge while
performing your work. Your case, therefore, is not a sure winner. You both have a good argument,
and there would have to be some back and forth in the court to get down to the facts of whether
the counter top damage was your fault. In this instance, I’d recommend sending a demand to the
client and I’d point to both the unreliability of the small claims court and the plaintiff’s bias. This
might be enough to bring the client around. You might, in some cases, have to settle before going
to court for less than the full amount that is owed to you. Settling is part of the lawsuit game, and
sometimes a settlement can be a good deal for all.

If you or your business is facing a small claims case, either as plaintiff or defendant, I’d recommend
that you read this book through, and then focus on certain areas that are pertinent to your case.



Our Goals
This book is designed primarily for the business owner. Business owners are more likely than most
to either become a defendant in a small claims case, or to have a need to bring a small claims case.
As a business owner myself, I have often come close to filing a small claims case on my own behalf,
but have managed to avoid it by using some of the techniques in this book. There are many steps
through which you should pass before actually going to trial at small claims court. Remember
always that the threat of bringing a lawsuit can sometimes induce a reluctant debtor to pay up.

My goal in this book is, quite simply, to help you win. I want you to get the best result possible in
your case. That may mean going to court to either pursue or defend an action; we’ll cover both
sides. You might also achieve victory by making and effective demand for payment, or by making
an effective rebuttal to a demand; again, we’ll cover both sides.



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