How to File a Lawsuit in Small Claims Court
Written by: Kristy Welsh
Last Updated: October 26, 2017
The procedures of filing a lawsuit in small claims varies from county to county and state to state. Below, are just general guidelines so make sure to check the rules of the court in the area where you are going to be filing the lawsuit. Additionally, in some states like Georgia, small claims court is called magistrate court. Visit this page for a state-by-state listing.
Filing a Lawsuit in Small Claims Court
First of all, most courts want to see that you attempted to collect this money before going to court, that is, you have taken all reasonable measures to collect before getting the courts involved.
Usually, by choosing a Small Claims Court, you waive all right to a jury trial. Furthermore, it is only in very specific instances that you have the right to appeal to a higher court if the Clerk does not find in your favor. Defendants, however, always have the right to appeal.
You need to go down to your county courthouse and ask the clerk for the procedure in your county. Fill out the documents they give you. The form may help you clearly outline your complaint. This is a good thing to do, especially if you are nervous about presenting your case or are afraid you might forget important facts. If county will not let you file this form (doubtful), then you can take it with you as your own private notes. You must pay all the filing fees before your paperwork will be processed.
In some counties, all you will have to do is sign the form in the presence of the clerk; in others, you will need to get a judge's signature.
Once your paperwork is filled out properly, you will be given a hearing date, trial date, or response date will be entered by the clerk. You will either be given the information then or by mail, depending on the court's local procedures.
It is the plaintiff's responsibility to accurately identify the defendant, provide a proper address and, if possible, provide a phone number. You must furnish the precise legal name and address of the party you are suing. For example, S & J Construction, Inc. You may sue any individual, business, partnership, or corporation. The legal name of a business which is not a corporation may be determined by contacting the clerk in the city or town hall and requesting business certificate information. Another suggestion is contacting the your state Corporation Commission to find out the exact name.
How much does it cost? All states have different filing fees, but generally the cost is between $10 and $50, with some businesses paying a slightly higher fee.
Serving the Notice
In order for the judgment to be binding, the party being sued must be properly served. Depending on your state, either the court will serve the notice, or leave it up to you. It is vital to make sure the party is served properly.
If your state makes it your responsibility to serve the party you are suing, ask for a list of the qualified people or services you can use to serve the paperwork.
Preparing For Trial
As mentioned in the previous section, you can help yourself by being well prepared.
To prepare for the trial, collect all papers, photographs, receipts, estimates, canceled checks, or other documents that concern the case. It may be helpful to write down ahead of time the facts of the case in the order that they occurred. This will help you to organize your thoughts and to make a clear presentation of your story to the judge.
It is also a good idea to sit through a small claims court session before the date of your hearing. This will give you first-hand information about the way small claim cases are heard.
What Happens At The Trial?
When you arrive at the court, report to the courtroom in which your case has been assigned.
When your case is called in the courtroom, come forward to the counsel table and the judge will swear in all the parties and witnesses.
Don't be nervous and remember that a trial in small claims court is informal.
The judge will ask the plaintiff to give his or her side first, then will ask the defendant for his or her explanation. Be brief and stick to the facts. The judge may interrupt you with questions, which you should answer straight out and to the best of your knowledge.
Be polite, not just to the judge, but also to your opponent. Do not interrupt. Whatever happens, keep your temper. Good manners and even tempers help the fair, efficient conduct of the trial, and make a good impression.
After both sides have been heard by the judge, he or she will normally announce the decision right then and will sign and hand the parties a judgment.
What If My Opponent Does Not Appear For Trial?
If the defendant fails to appear for trial, the plaintiff will be granted judgment for the amount of the claim proven in court, plus costs, provided the plaintiff can show proof of service.
If the plaintiff fails to appear, the claim is dismissed; however, generally the court will permit the plaintiff to start over, if good cause for the non-appearance is shown.
Can You Appeal If You Lose?
You can always appeal to a higher court, usually the superior court in your state. If you plan on doing this, there is usually a time limit in which to file, so make sure you file your paperwork in a timely manner. Court fees for Superior Court are different than small claims, again, your county courthouse clerk can answer questions about your filing fees and procedures.
If you agreed to arbitration, meaning you did not see a judge, but agreed to mediation by a lawyer (in some states with heavy workloads like California, this happens frequently when you want to expedite the hearing), you ability to appeal may be limited. You need to check out these types of things before proceeding.
How Do I Collect My Money?
A money judgment in your favor does not necessarily mean that the money will be paid. The Small Claims Court does not collect the judgment for you.
If no appeal is taken and the judgment is not paid within 30 days, or the time set by the court in the payment plan, that a transcript of the judgment be entered into the civil docket of the court. At that time you may proceed with a method of collection such as garnishment of wages, bank accounts, and other monies of the defendant or an execution may be issued on cars, boats, or other personal property of the judgment debtor. Remember, the clerks cannot give you legal advice. You may need the assistance of an attorney or collection agency at this point.
When the judgment has been paid in full you must send written notice to the district court that the judgment has been satisfied.
How Do I Enforce a Judgment?
If your judgment calls for the creditor to remove or update a listing to your satisfaction, you can send a copy of it into the credit bureaus as part of supporting documentation when you request them to update your listing. Send in your credit dispute via regular mail to each of the credit bureaus. This should be more than enough to get the listings corrected.
Please Note: WE ARE NOT ATTORNEYS. If you are being sued, it's always a good idea to hire an attorney or get some legal assistance. If you cannot afford an attorney, a lot of people have handled their cases pro per or without a lawyer. Our articles are meant to provide basic information on handling litigation.