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Initial court date in few days... Filing for discovery? when? how?


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Hi everyone...

 

I'm sure you can figure it out but I'm being sued... Got to love these JDC's!

 

I've been trolling these forums for some time now and have got a lot of useful information here... so thank you first off!

 

I've already filed my answer and made my appearance at the courthouse. And my first court date is next week. However, I've still got a few questions that I'm hoping you guys ( and women) could help me with.

 

I've read that I should file for Discovery, cause the law firm to have to do as much work on there end as possible but I'm not sure when and where I need to file for it. Do I need to go down to the court house again to file for discovery BEFORE my first court date? Am I too late seeing that my first court date is next week? Do I do it while I'm there for my first court date or after?

 

 What should I expect on my INITIAL court date? Do I need to have my defense ready to go? Or as a poster described in this this thread http://www.creditinfocenter.com/community/topic/292720-start-to-finish-winning-against-midland-funding-aka-jdb/ his initial court date with MIDLAND, which is who's suing me. Should I expect this to be roughly what happens on my initial date?

 

I'm in Chicago so my court is Cook County small claims court.

 

For convenience my questions are:

 

1.Generally what should I expect on my initial court date? Do I need to have defenses ready, etc?

2. Since next week is my first initial court date and all I've done is make my appearance, am I screwed? should I have already done more?

3. Depending on answer for question #2... When do I file for Discovery against the plantiff? Before my initial court date, while I'm there, or after? And who do I file it with? The clerk?

 

Thanks in advance!

 

 

 

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Discovery is between parties, the court does not get any copies. It is addressed to the plaintiff. The only time the court gets involved is if there is a dispute of some kind.......somebody won't answer, gives an incomplete answer, etc. You may not even get discovery in small claims court, look up the rules of procedure for small claims in your state, that will tell you most of what you need to know.

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Be ready for the judge to ask you questions

 

Judge: Is this your debt?
You: Your Honor, the Plaintiff has provided no proof of this debt. To the best of my knowledge and evidence provided, this is not my debt.

Judge: Did you ever have a card with Bank A?
You: Yes, I did Your Honor, but to the best of my recollection, this card was paid off. In addition, the Plaintiff has provided no proof the debt is unpaid or even that this PARTICULAR debt is mine.

 

  • If you are not in the process of formally presenting your case, don't say ANYTHING unless judge asks you a question.
  • Don't EVER interrupt the judge.
  • Call the judge "Your Honor" if addressing the judge directly. At other times, you can refer to the judge as "Your Honor" or "the Court".
  • Stand when you are speaking.
  • If the judge asks you to go out in the hall to discuss a settlement with the Plaintiff's attorney, politely tell them you don't want to settle. Insist on a court trial.
  • Spoken Statements:
    if the Plaintiff is a collection agency or junk debt buyer, object to anything the attorney says as hearsay. The attorney and the plainiff do not have intimate knowledge of the creation of the debt.

    Written Evidence:

    1. If the Plaintiff's attorney shows anything wasn't included in the original summons/complaint package, object on the basis that it wasn't included in discovery. If the judge still allows it, see if it is authenticated.
    2. If any evidence isn't authenticated, object to it as hearsay. "Authenticated" means there is a letter from Bank A stating that these are true copies of the original.

 

If the small claim arises out of a contract or another type of document, copies of the
contract or document must be attached to the original and all copies of the complaint,

unless the plaintiff attaches an affidavit stating that it is unavailable. Sup. Ct. Rule
282. Copies of other important documents, such as bills or receipts also may be
attached.

If the defendant files an Appearance form, there is no need to file an answer to the
complaint. In such a case, the allegations against the defendant in the complaint are
presumed to be denied and the defendant is free to prove any defense to the charges.
Sup. Ct. Rule 286.

If the defendant fails to file an appearance and pay the required fee on the return date,
a judgment by default may be entered for the relief requested in the complaint.

In preparing your case, you should keep in mind that the goal is to present proof that
is more convincing than your oppositions. The Illinois Attorney General=s Office
recommends the following preparatory steps:

 

Make a detailed list of what happened so the facts are clear in your mind.

Gather all documents, notes, receipts, pictures, or other physical
evidence that you need to prove your claim.

Determine if any witnesses will be helpful to your case and, if so, ask
them to appear at your trial. If they will not voluntarily appear, you may
choose to “subpoena” their attendance at the trial. Subpoena forms are
available either at the clerks office or at
http://198.173.15.34/?section=FormsPage (in the “Search by Division”
section, click “small claims” to reveal the selection of small claims
forms). Note that written statements from witnesses may not be
admitted at trial. If a witness is crucial to your case, that witness must be
in court.

If you are suing on the basis of defective merchandise or faulty services,
it may be helpful to have an expert witness testify on your behalf at trial.
In a case where an expert might be useful, you should have the expert
evaluate the facts of your case before trial, and if the expert agrees with
your position, make sure he or she is available on the date of the trial.

In addition, since your court appearance will involve an oral presentation of your story,

 

it is helpful to go through your presentation several times in advance, until you feel
comfortable. It also may be useful to have someone not familiar with the facts of the
dispute listen, ask questions, and then critique your presentation. This person can
tell you if your explanations are sufficiently clear, forceful and convincing, and can help
prepare you for difficult questions that the judge or your adversary may ask.

If you have never appeared in small claims court, you may benefit from attending court
hearings in other cases as part of your preparation, just to get a sense of how the
trials are conducted. The clerks office should be able to tell you when trials are
scheduled.

Note that the usual forms of “discovery” in civil lawsuits depositions, written
interrogatories, or requests for the production of documents  are not available in
small claims actions without first obtaining a court order permitting them.
You should
gather the necessary materials yourself, and should not expect that you will be able to
obtain them from your adversary.

When your case is called, the judge will typically ask the plaintiff briefly to summarize
the nature of the lawsuit and then ask the defendant if they admit or deny the
allegations made and/or the amount of damages that the plaintiff is seeking.
If the
defendant admits liability and agrees to a damages amount, judgment will be entered
for the plaintiff.

If the defendant denies the claim or disagrees with the amount of damages that the
plaintiff claims to be entitled to, then the court will set the case for trial.
The trial may
occur immediately, or be set for later in the day or on some future date. Both parties
should prepare for this initial hearing as though the trial will occur on that day. That
means bringing any evidence or witnesses to the hearing and being prepared to
argue your case. While the court may grant a partys request for “continuance” to
another date if that party is not ready to proceed on the hearing date, the court has the
discre

The plaintiff is given the first chance to present his or her case. This means telling in
an orderly fashion the plaintiffs side of the story, including presenting any evidence
and/or witnesses. When the plaintiff has finished, the defendant will then have the
opportunity to present his or her side of the story, including evidence and witnesses.

The judge may choose to relax some of the formality typically associated with trials,
and may ask questions of the parties or witnesses.
After both sides have presented
their cases, a decision will be rendered. If either party has demanded a jury (and paid
the proper fee), jurors will make the decision. Otherwise, the judge will decide.

tion to deny such a request.

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Be ready for the judge to ask you questions

 

Judge: Is this your debt?

You: Your Honor, the Plaintiff has provided no proof of this debt. To the best of my knowledge and evidence provided, this is not my debt.

Judge: Did you ever have a card with Bank A?

You: Yes, I did Your Honor, but to the best of my recollection, this card was paid off. In addition, the Plaintiff has provided no proof the debt is unpaid or even that this PARTICULAR debt is mine.

 

  • If you are not in the process of formally presenting your case, don't say ANYTHING unless judge asks you a question.
  • Don't EVER interrupt the judge.
  • Call the judge "Your Honor" if addressing the judge directly. At other times, you can refer to the judge as "Your Honor" or "the Court".
  • Stand when you are speaking.
  • If the judge asks you to go out in the hall to discuss a settlement with the Plaintiff's attorney, politely tell them you don't want to settle. Insist on a court trial.
  • Spoken Statements:

    if the Plaintiff is a collection agency or junk debt buyer, object to anything the attorney says as hearsay. The attorney and the plainiff do not have intimate knowledge of the creation of the debt.

    Written Evidence:

    1. If the Plaintiff's attorney shows anything wasn't included in the original summons/complaint package, object on the basis that it wasn't included in discovery. If the judge still allows it, see if it is authenticated.
    2. If any evidence isn't authenticated, object to it as hearsay. "Authenticated" means there is a letter from Bank A stating that these are true copies of the original.

 

If the small claim arises out of a contract or another type of document, copies of the

contract or document must be attached to the original and all copies of the complaint,

unless the plaintiff attaches an affidavit stating that it is unavailable. Sup. Ct. Rule

282. Copies of other important documents, such as bills or receipts also may be

attached.

If the defendant files an Appearance form, there is no need to file an answer to the

complaint. In such a case, the allegations against the defendant in the complaint are

presumed to be denied and the defendant is free to prove any defense to the charges.

Sup. Ct. Rule 286.

If the defendant fails to file an appearance and pay the required fee on the return date,

a judgment by default may be entered for the relief requested in the complaint.

In preparing your case, you should keep in mind that the goal is to present proof that

is more convincing than your oppositions. The Illinois Attorney General=s Office

recommends the following preparatory steps:

 

Make a detailed list of what happened so the facts are clear in your mind.

Gather all documents, notes, receipts, pictures, or other physical

evidence that you need to prove your claim.

Determine if any witnesses will be helpful to your case and, if so, ask

them to appear at your trial. If they will not voluntarily appear, you may

choose to “subpoena” their attendance at the trial. Subpoena forms are

available either at the clerks office or at

http://198.173.15.34/?section=FormsPage (in the “Search by Division”

section, click “small claims” to reveal the selection of small claims

forms). Note that written statements from witnesses may not be

admitted at trial. If a witness is crucial to your case, that witness must be

in court.

If you are suing on the basis of defective merchandise or faulty services,

it may be helpful to have an expert witness testify on your behalf at trial.

In a case where an expert might be useful, you should have the expert

evaluate the facts of your case before trial, and if the expert agrees with

your position, make sure he or she is available on the date of the trial.

In addition, since your court appearance will involve an oral presentation of your story,

 

it is helpful to go through your presentation several times in advance, until you feel

comfortable. It also may be useful to have someone not familiar with the facts of the

dispute listen, ask questions, and then critique your presentation. This person can

tell you if your explanations are sufficiently clear, forceful and convincing, and can help

prepare you for difficult questions that the judge or your adversary may ask.

If you have never appeared in small claims court, you may benefit from attending court

hearings in other cases as part of your preparation, just to get a sense of how the

trials are conducted. The clerks office should be able to tell you when trials are

scheduled.

Note that the usual forms of “discovery” in civil lawsuits depositions, written

interrogatories, or requests for the production of documents  are not available in

small claims actions without first obtaining a court order permitting them. You should

gather the necessary materials yourself, and should not expect that you will be able to

obtain them from your adversary.

When your case is called, the judge will typically ask the plaintiff briefly to summarize

the nature of the lawsuit and then ask the defendant if they admit or deny the

allegations made and/or the amount of damages that the plaintiff is seeking. If the

defendant admits liability and agrees to a damages amount, judgment will be entered

for the plaintiff.

If the defendant denies the claim or disagrees with the amount of damages that the

plaintiff claims to be entitled to, then the court will set the case for trial. The trial may

occur immediately, or be set for later in the day or on some future date. Both parties

should prepare for this initial hearing as though the trial will occur on that day. That

means bringing any evidence or witnesses to the hearing and being prepared to

argue your case. While the court may grant a partys request for “continuance” to

another date if that party is not ready to proceed on the hearing date, the court has the

discre

The plaintiff is given the first chance to present his or her case. This means telling in

an orderly fashion the plaintiffs side of the story, including presenting any evidence

and/or witnesses. When the plaintiff has finished, the defendant will then have the

opportunity to present his or her side of the story, including evidence and witnesses.

The judge may choose to relax some of the formality typically associated with trials,

and may ask questions of the parties or witnesses. After both sides have presented

their cases, a decision will be rendered. If either party has demanded a jury (and paid

the proper fee), jurors will make the decision. Otherwise, the judge will decide.

tion to deny such a request.

Thanks Racecar! Thats exactly what I was looking for! What do you think the chances are of the trial being held at that moment?

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In Illinois small claims you have to ask leave of court to conduct discovery. I just asked the judge verbally at my return date but if I were to do it over I would file a Request for Leave to Conduct Discovery prior to the return date. My entire first court date lasted about 30 seconds. The judge asked if I admitted or denied and I denied. Then I asked for leave to conduct discovery and he granted it. End of court date. 

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A request for a bill of particulars is not permitted in a small claims case without prior leave of court (134 Ill.2d Rule 287) Because of the informal nature of small claims cases, granting a request for a bill of particulars is discouraged. Assuming, for the sake of argument only, that a bill of particulars was appropriate in this case, we note the object of the bill is to supply a deficiency in the complaint. (proof of the particular cause or causes of action referred to therein (Bazzell-Phillips & Associates, Inc. v. Cole Hospital, Inc. (1977), 54 Ill.App.3d 188, 191, 11 Ill.Dec. 883, 886, 369 N.E.2d 337, 340), but the bill of particulars need not state more than the party is bound to prove (Bejda, 73 Ill. App.3d at 488, 29 Ill.Dec. at 485, 392 N.E.2d at 42).Bejda, 73 Ill. App.3d at 488, 29 Ill.Dec. at 485, 392 N.E.2d at 42.) The effect of the bill of particulars is to restrict plaintiff at trial to proof of the particular cause or causes of action referred to therein (Bazzell-Phillips & Associates, Inc. v. Cole Hospital, Inc. (1977), 54 Ill.App.3d 188, 191, 11 Ill.Dec. 883, 886, 369 N.E.2d 337, 340), but the bill of particulars need not state more than the party is bound to prove (Bejda, 73 Ill. App.3d at 488, 29 Ill.Dec. at 485, 392 N.E.2d at 42).

A small claims complaint must simply set forth the following: (1) plaintiff's name, residence address, and telephone number, (2) defendant's name and place of residence, or place of business or regular employment, and (3) the nature and amount of the plaintiff's claim, giving dates and other relevant information. If the claim is based upon a written instrument, a copy thereof or of so much of it as is relevant must be copied in or attached to the original and all copies of the complaint, unless the plaintiff attaches to the complaint an affidavit stating facts showing that the instrument is unavailable to him." (134 Ill.2d R. 282(a).)

 

 


 

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