If you do chose to jump into the deep end of the pool, good for you! It’s not that hard if you know how to swim. Generally, speaking litigation in small claims is a pretty simple game. It should be. In fact, they try to make it that way. It is designed for the lay person or the “average joe”. You should look at it in two (2) parts: pre-judgment and post-judgment.
PRE-JUDGMENT: The process is this. File your complaint, serve it, and go to the hearing…prepared. First, you are going to have to go online or down to your local courthouse. If you go down to the courthouse, see a civil clerk and tell them that you want to file a small claims action and you need the necessary forms. Technically, they are not allowed to give legal advice, BUT sometimes if you are nice, put on a smiley face, and act dumb they will help you out if you have any questions.
Once you have the forms, obviously, you need to fill them out. They will generally have instructions attached, but the most important things to keep in mind here are: who you are suing, why you are suing in that particular court, and amount you are suing for, and why.
First, who you are suing may seem simple at first, but it’s not always. You need to get the entity correct. For instance, if you are selling to a company called “ABC Company” and the person you deal with is Neal Johnson. Do you ABC Company, Neal Johnson, both or neither? The reason this is important is because if you sue the wrong person or entity it could possibly delay your case or more importantly affect the collectibility of your judgment later down the road. For this you may need to do a bit of research. Most states have a Secretary of State website where you can search for corporations by name. Is your debtor listed? If they are not there, you can try your county or city clerks office and ask for the business’ “fictitious business name statement” or “dba”. That will generally tell you who the owner of the business is. Even if it is Neal Johnson you are dealing with, it might be Joe Smith who is the actually owner. Sue Joe. You want the owner, not his employee(s).
As far as picking the court to file this in, this is important because the court has to have what is called “jurisdiction” so that they can legally hear the case. Basically, it has to be in THIER geographical area. Generally, this doesn’t mean your geographical area, it means the debtor’s geographical area. This can all get very convoluted, but generally speaking, if you file in the court nearest the debtor you should be good. Just check with the court first and give them your debtor’s address so they can confirm it is in their jurisdiction.
Of course, you want to state the basic facts of your case, but you also want to make sure you state the amount that you want specifically. Oftentimes, if you don’t know, then how is the judge to know.
Now that you have the paperwork filled out, make copies, pay the filing fee and file your complaint. Once you’ve got the “conformed” copies, you have to have them served. Some states may allow service by mail, which is great, but most will require that a process server do it for you. It is best to have a licensed process server do this so that they can give you a “proof of service” document so that you can prove to the court that your debtor was served if he doesn’t show, which happens regularly. The local Sheriff’s department will often have a civil division that will serve your paper for a small fee. Otherwise, hit the yellowpages and look for “attorney service” or “process servers”.
Before your trial date arrives, it is a good idea to go down to the courthouse and sit in on a small claims session so that you can see what happens and how the court operates. This will also take away some of the anxiety of the unknown on the day of trial. Don’t worry. You will be fine. You have the law on your side.
On the day of trial, please do yourself and everyone else a favor. Be prepared!
Have your documents in order. Have any originals and at least two (2) copies (one each for the judge and the debtor) “marked”. This is something you may want to find out when you go on your scouting mission. For example they might want them as A, B, C, etc or 1, 2, 3, etc.. Each court has their own system. Make sure that if you have any witnesses, that they are there and informed. Do you know what the debtor is going to say? How are you going to refute it?
Every judge is different, but most are going to conduct this the same way. You will tell your story first (without interruption), the debtor will tell their story and try to refute yours (without interruption), you will get a chance to rebut again as will the debtor until the judge has heard all he wants to hear.
The judge will generally allow each party to speak uninterrupted by the other party, but it is also natural for him to interrupt to ask questions along the way. If you want to stay on the judge’s good side (and I suggest that you do), DO NOT interrupt the other party or him, especially. Also, be as clear and concise as you can be and stick to business. The judge doesn’t need to hear that you think the debtor is an @)*$)*%#. First, he can form his own opinion and doesn’t need yours, and second, it is irrelevant. Trust me.
WHEN you get your judgment, make sure that you’ve calculated your court costs and service of process fees and that they are included, as well as interest. These are all items that are usually part of any award. Your interest would be calculated from either the date of last charge (if on account) or date of breach (if contractual). Most likely, the court will mail a Notice of Ruling or Judgment to you in the mail, but some courts may require that you submit a judgment form with all the figures included.
Either way, once you obtain your judgment, you are only half way to getting your money. Congratulations are in order, but the real celebration must wait. Our next article will discuss the in and outs of actually collecting upon your judgment.
