How to Win Your Case in Small Claims Court Without a Lawyer

How to Win Your Case in Small Claims Court Without a Lawyer

By Charlie Mann

How to Win Your Case In Small Claims Court Without a Lawyer

Copyright © 2009 by Atlantic Publishing Group, Inc.

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ISBN-13: 978-1-60138-306-8 ISBN-10: 1-60138-306-1

Library of Congress Cataloging-in-Publication Data

Mann, Charlie, 1944-

How to win your case in small claims court without a lawyer

/ by Charlie Mann.

p. cm.

Includes bibliographical references and index.

ISBN-13: 978-1-60138-306-8 (alk. paper)

ISBN-10: 1-60138-306-1 (alk. paper)

1. Small claims courts — United States — Popular works. 2. Pro se representation — United States ­ Popular works. 3. Actions and defenses — United States — Popular works. 4. Trial practice — United States — Popular works. I. Title.

KF8769.M36.2009

347.73’28--dc22

2008038275

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We wanted you to know a portion of the profits of this book will be donated in Bear’s memory to local animal shelters, parks, conservation organizations, and other individuals and nonprofit organizations in need of assistance.

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PS: We have since adopted two more rescue dogs: first Scout, and the following year, Ginger. They were both mixed golden retrievers who needed a home.

Want to help animals and the world? Here are a dozen easy suggestions you and your family can implement today:

Adopt and rescue a pet from a local shelter.

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Plant a tree to honor someone you love.

Be a developer — put up some birdhouses.

Buy live, potted Christmas trees and replant them.

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Save natural resources by recycling and buying recycled products.

Drink tap water, or filter your own water at home.

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Support your local farmers market.

Get outside. Visit a park, volunteer, walk your dog, or ride your bike.

Five years ago, Atlantic Publishing signed the Green Press Initiative. These guidelines promote environmentally friendly practices, such as using recycled stock and vegetable-based inks, avoiding waste, choosing energy-efficient resources, and promoting a no-pulping policy. We now use 100-percent recycled stock on all our books. The results: in one year, switching to post-consumer recycled stock saved 24 mature trees, 5,000 gallons of water, the equivalent of the total energy used for one home in a year, and the equivalent of the greenhouse gases from one car driven for a year.

Dedication

To my wife, Phyllis

Your support and love

are my

inspiration and motivation

-and-

In loving memory of my

brother, David, and sister, Paula

Table Of Contents

PREFACE

CHAPTER 1: A World Full of Disputes

CHAPTER 2: Preparing for Small Claims Court

CHAPTER 3: Do You Have a Good Case?

CHAPTER 4: Preparing for What Can Go Wrong

CHAPTER 5: Special Solutions for Specific Cases

CHAPTER 6: Bankruptcy (341a Hearing, Representation for Yourself)

CHAPTER 7: Getting Organized for Small Claims Court

CHAPTER 8: Potential Problems Before the Court Date

CHAPTER 9: Preparing for Your Day in Court

CHAPTER 10: The Need, Selection, and Use of an Expert Witness

CHAPTER 11: The Trial Day

CHAPTER 12: All Is Not Lost If Your Opponent Wins

CHAPTER 13: Approaching the Defendant for Payment

CHAPTER 14: Finding Assets

CHAPTER 15: Winning Is Only Half the Battle

CHAPTER 16: The Collection of theJudgment

CHAPTER 17: Closing Out a Case When the Judgment Has Been Met

APPENDIX A: Glossary of Legal Terms

APPENDIX B: Resources by State, Information compiled July 2009

APPENDIX C: User Groups, Newsgroups and Chat Groups

BIBLIOGRAPHY

AUTHOR BIOGRAPHY

Preface

Most of us go through life having some disagreements. The latest argument may have been with a local merchant who promised free service when you bought its recommended brand, or perhaps it was with an auto manufacturer concerning an extra device you ordered from the factory. You may even have had a disagreement with your local Internal Revenue Service (IRS) agent over the taxes you owed for a small lottery winning three years ago.

When we interact with other people or businesses in this country, we have a remedy for disputes called the small claims court. It is often a fast, hassle-free way to resolve life’s little problems without the need to file a major lawsuit or hire an attorney. Explaining how to do this was the objective for writing this book.

This book, unlike the vast majority on the market, is designed for readers everywhere in the United States. It also has references and information on the only federal small claims court — the Small Claims Tax Court. The book illustrates how to win your case and effectively collect your money after the judge issues the paperwork that says you are right. Also included are examples of cases from people like you and information about how to find assistance when you desperately need it.

As business is transacted, as individuals agree to act together, and as limited liability companies and corporations supply services, conflicts will be created. It is a natural part of living in a free market system. Some disputes will be large and others small. Minor disputes can be settled in small claims court. What is small varies from state to state, so check the resources sections in Appendix B for the limits and costs of filing in your state.

Figure 1.1: Small Claims Court Checklist should help you learn the process, digest the terms, and move swiftly to get your case going. You will need to take a few steps to take your case to court and get back the money you have lost. This book will even detail various ways in which the defendant has the right to defend himself or herself from a court judgment that goes against him or her. As with all legal actions, there are often appeals or other trials you can propose to settle the matter to your satisfaction.

Table of Contents

CHAPTER 1: A World Full of Disputes

Who Can You Sue?

In most cases, if you or your company has a dispute, you can settle it in small claims court — if the person or entity can be sued. This includes all individuals, whether individually, as a married couple, or named separately in a group. You may sue a business, even if it is organized as a corporation, limited liability company (LLC), a sole proprietorship, or a Doing Business As (DBA) company. Nonprofit organizations can also be sued.

In some states class action cases take place, where you sue to represent a group of similarly affected but unnamed plaintiffs. However, often, the big cost in this type of case is that of locating and paying all the plaintiffs. For this, the court may order an attorney or collection firm to do the distribution of the class action settlement.

If you have a tax problem with the IRS, it has a special small claims court in the larger cities of most states. The limit is $50,000 and applies to each tax year. In most cases, the IRS audits occur near the three-year statute of limitations on honest tax mistakes. The statute of limitations on tax fraud is five years or longer. In Small Claims Tax Court, you can file suits totaling $150,000 if the IRS is seeking back tax underpayments for the last three years available under the statute of limitations. You can sue the estate of a deceased individual by suing the executor of the estate within the time deadlines of estate law.

You cannot sue most government agencies unless they give prior approval to the suit. This kind of permission is rare. You also cannot sue members of the military or their families, whether they are overseas or in the United States. Prisoners in most states and also federal prisoners are exempt from suit in small claims court. To sue a minor, you must sue his or her parent(s). In most states, people who are disabled, either through physical or mental defect, cannot be sued.

What Kinds of Lawsuits Are Possible?

The common types of small claims court cases include negligence with automobiles, contract disputes, landlord or tenant issues, bad check issues, dog bite cases, property damage issues, personal injury cases, defective products cases, breach of warranty issues, and nuisance claims. Less common types of cases you can take to a court without a lawyer (pro se, acting as your own attorney) include divorce, child support, custody of a minor, professional malpractice, libel, slander, and defamation of character.

Most of these cases can be taken to small claims court if the amount of money involved meets the state’s guidelines. Cases that deal with divorce and family matters are often conducted in family court. Pro se cases are fairly common. There are two additional exceptions to matters that can be brought before a local small claims court. First, cases dealing with an IRS decision, which requires you to pay money for taxes you do not feel you owe, may be taken to Small Claims Tax Court (see information for your state in Appendix B). Here, you may also be able to obtain a mediator for free, who will work with you and the IRS agent in charge of your case to resolve or compromise a solution before your day in court.

Second, if you obtain a judgment in a state court and are still unable to collect what is due to you under the various state law tactics described in the following sections, try going to Small Claims Tax Court. You will need to obtain the debtor’s Social Security or federal identification number; then sue to attach the next available tax refund or overpayment.

The Rule of Law

The rule of law dates back to the Magna Carta in the British Empire and is carried forth in American law and justice to this day. The rule of law says that no man is above the law. In the case of the small claims court, anyone can be sued, and he or she must appear before the judge, who hears both sides of a case. The rule of law is the leveling principle of our jurisprudence. All issues of dispute between two parties can be brought before a court with the proper venue. The cases in this book go before the small claims portion of the court system.

The Psychology of Litigation

In each small claims case, the parties have roles. The plaintiff is the aggressor who asserts his or her claim against the defendant, who tries to defend his or her position against the accusations of the plaintiff. It is plaintiff’s responsibility to take every step necessary to push the case forward to a favorable decision. This includes a well-organized case, good evidence, controlled chain of custody of the evidence, the availability and use of witnesses, and an aggressive effort to counter the tactics of the defendant to disprove the case.

The defendant’s role is more difficult psychologically when a person is accused of an act he or she does not want acquaintances to know about. This can be devastating. The actions a defendant must initiate in court are somewhat simpler than those of the plaintiff. The defendant must anticipate the alleged facts and evidence the plaintiff will present and then proceed in preparing statements, a testimony, or witnesses to disprove the allegation.

Whether you are the defendant or the plaintiff, a key to winning is to be polite when presenting statements, interrogating witnesses, or discussing evidence. Do not be rude, obnoxious, or loud. If you can force your opponent to make the case into a crusade, that may be enough to win points with some judges.

When filing a case, the psychological effect is to make the case a challenge to both sides. First, consider taking other steps that are available for settlement. When a plaintiff becomes disconcerted with normal means to reconcile a dispute, he or she will become resolute to the cause of using small claims court to settle matters. When a defendant is served with court documents, it is like a legal slap across the face, inviting the person to a joust. Both parties must keep their feelings hidden so that they may carry forth their cases in a calm, orderly fashion.

The Judgment-Proof Defendant

A judgment-proof defendant is a defendant who, regardless of the outcome of a lawsuit, will not have the means or inclination to pay the judgment that is ordered. Eighty-seven percent of the small claims court cases in the United States are never completely collected. In Appendix B: Resources by State, you will find links to national asset location services. You can save money in the long run by having a service check to see if the proposed defendant has the assets and income to pay the amount you expect to receive from small claims court.

Some defendants are automatically classed as judgment-proof defendants. They include persons living on government-funded fixed incomes; persons with negative net worth; prisoners; members of the military service; and some state, federal, and local government agencies. Various groups may not be judgment-proof if they have insurance covering the type of action in which you are accusing involvement or entities with a guarantor (see Appendix A: Glossary of Legal Terms).

The Need for This Book

This book was designed to help those who want to redress a grievance by using a small claims court in their state. Check the limits for small claims cases in Appendix B in the back of the book. If your case is larger than the upper limit, you should hire an attorney and file a regular civil suit. Reconsider going to court alone if you do not have the time to manage the process of preparing a complaint for the court, having your opponent served with the necessary papers, spending time watching other trials, practicing the presentation of your case, or dedicating at least a half-day to the trial itself. You are starting what could be a complicated procedure in collecting the debt created by a winning judgment.

The first choice in handling the case might be to hire an attorney. It will save what may be valuable time for you and increase your odds of securing money at the end. In some cases, the attorney’s fees may be paid out of the settlement. If you feel you have the time necessary but want someone to take care of the paperwork, check in your state’s section of Appendix B for companies that will file the paperwork for you. Show up in adequate time, and dress neatly on the court date. Act confident, and be prepared to present your case before the judge.

Because the major issue in most cases is the collection of the debt created by the judgment, you may wish to do all upfront work yourself and let a collection agency secure the debt. Most reputable collection agencies do not charge a fee but get a percentage of what they collect. Therefore, their services cannot put you further in the hole. Although this will reduce your compensation, you may consider your time to be worth the

collection costs.

Many local bar associations and young lawyer groups will refer you to a low cost or