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Money is hard to get and even harder to keep. Therefore, everyone should always pay their just debts. Unfortunately, many people are professional deadbeats. These people deliberately run up debts for services or property and refuse to pay. Such people count on the fact that litigation through the normal court system is expensive and that it would usually cost more to collect the debt than it is worth. The cost for an attorney is usually at least $150 per hour. The normal debt collection runs at least $5,000 in attorney costs. Unless there is a written agreement that the prevailing party will get attorney fees, each side must pay their own attorney fees. It is this reality that the unscrupulous use to avoid paying their just debts.

In response to this situation, all states have adopted laws establishing small claims procedures. Under these laws, small claims, usually no more than $5,000, are heard before special judges, commissioners or attorneys serving as judges pro tem. The small claims court employs simplified procedures which make it easier for the parties to present their cases. Small claims courts are truly the people's court. For most individuals a small claims appearance will be their only contact with the judicial system except for the occasional traffic ticket.

Small claims court exists as an alternative to the highly structured, complex and expensive traditional court system. Small claims courts are a cheap, fast and efficient means to settle disputes concerning small amounts of money.

There are many "How To" books on the market that instruct a person as to what he must do to file a small claims action. This chapter addresses most of the fundamental concerns people have concerning small claims court without having to buy expensive books that merely expand this information. Through this chapter the average person should be able to understand the small claims court procedure. The reader should be able to go to the clerk of the small claims court, get the forms and the local rules of court and intelligently start the action.

The reason this chapter is appearing in this book is to educate people on the advantages and simplicity of the small claims court. There is no reason that a person should forgive debts of hundreds or thousands of dollars because it is not cost effective to hire an attorney to sue for such money. Money represents a person's future and safety. Money's protection and its recovery from those who should not have it makes the knowledge contained in this chapter vital. Knowledge is power, power is money, and money is security. It is important to know how to go to small claims court to preserve one's financial interest.

The small claims court is a specially created court in which most disputes can be tried inexpensively and quickly. The rules of the court are simple and court procedure is relatively informal. Lawyers are not permitted to present or try the case. Claims vary from state to state. In California, for instance, disputes of $5,000 or less can be heard in small claims court. The regular filing fee for most small claims courts is between $6 and $15.

A small claims case is usually heard within forty (40) to seventy (70) days from the filing of the claim. While most small claims cases involve money damages, most small claims courts have the power to grant other remedies. For example, most small claims courts have the authority to grant injunctive relief which means authority to order a person to do or not do something (mandamus or injunction) if the value of the act ordered or restrained is within the monetary limits of the court.

Nearly anyone can sue in small claims court. The person bringing the suit is called the plaintiff and the person being sued is the defendant. An individual can sue other individuals or businesses and vice versa. Most states deny collection agencies the right to sue in small claims court, nor can someone file a small claims action for another. Most states deny assignees, persons who buy the debt of another, to sue in small claims court for collection of that debt.

A person must be over eighteen (18) years of age and mentally competent to file in small claims court. The plaintiff need not be a U.S. citizen to file a small claims complaint. The plaintiff does not have to speak English to file the complaint. Interpreters are permitted in court if a witness does not speak competent English.

It is imperative that a plaintiff file a small claims action in the proper court. Failure to file in the proper court may result in the action being transferred to proper court or dismissed altogether. Generally, a small claims action is filed in the court of the judicial district or area where the defendant lives or the business is located. Sometimes state laws permit the plaintiff to sue in the court district where an accident or tort (a civil wrong) occurred although it may not be where the defendant lives. Most states permit a small claims suit involving a breach of contract to be filed:

1. Where the defendant lives.

2. Where the defendant signed the contract.

3. Where the defendant lived when the contract was signed.

4. Where the contract was to be performed.

If it is possible to file in more than one judicial district, the plaintiff may choose the one most convenient for the plaintiff and witnesses. A judicial district may be chosen where the defendant does not live, thereby requiring longer notice and delaying when the case can be heard. All of the forms for small claims court are obtainable from the clerk of the small claims court. Many stationary stores also sell small claims forms to the public.

III. ATTORNEYS USUALLY ARE NOT PERMITTED IN SMALL CLAIMS CASES

Most states preclude the appearance of an attorney in small claims court as an advocate of a party. In most states the attorney cannot give legal advice in court to either plaintiff or defendant, nor can an attorney comment in court as to the presentation of evidence. The fact that most states do not permit attorneys in small claims actions is unique. There are no other instances in American courts where the parties are denied the right to have an attorney speak for them in court.

Although an attorney cannot appear in many small claims courts, the parties are permitted to speak with attorneys outside court and ask for advice in preparing their cases. The reason attorneys are not allowed in court is they are not necessary under the abbreviated procedures of the court. Both sides merely tell the court what happened and produce evidence they have to support their explanation. The trial is informal, sometimes to the extent of becoming a community forum or pulpit for the expression of individual beliefs.

An attorney is permitted to testify as a witness. There is no prohibition against calling an attorney or other professional to present facts and testimony germane to the case. The attorney is simply prohibited from assisting a party presenting his case in the courtroom. Regardless of whether an attorney is permitted to appear or not, the case is handled in the same manner by the court. The court, however, may stand more on strict compliance with state procedure when an attorney is present, which is a benefit to the party with an attorney: evidentiary objections, particularly as to hearsay, are more likely to be upheld.

IV. ALL CLAIMS MUST COMPLY WITH THE STATE'S

STATUTE OF LIMITATIONS

Every claim has a statute of limitations: a period of time in which a lawsuit must be filed or the right to bring the lawsuit will be lost. Statutes of limitation vary from state to state. The theory behind statutes of limitation is that no one should sit on their rights. The courts want to have claims decided as promptly as possible. Therefore, if a person waits too long to sue for damages, even though legitimately owed, the court will dismiss the complaint.

For example in California, the statute of limitations for various claims is as follows:

1. Claims for personal injury (physical injury to a person) have a one-year statute of limitation.

2. Breaches of a written contract have a four-year statute of limitation; while oral contracts have a two-year statute of limitation.

Checking the civil code for the state where the small claims court is located will give the appropriate statute of limitations for the appropriate claim.

Suits against most governmental agencies require special handling. First, the plaintiff must file a claim with the agency within a certain period of time following the injury or breach, normally around one hundred (100) days, but this varies. If the agency rejects the claim, the plaintiff must file his action within a very narrow time period, usually six months, or lose the right to sue altogether. Claims against government agencies should be pursued with all dispatch.

An agency is usually allowed 60 days after receipt to accept or reject. The claim is automatically rejected if the agency has not accepted within the allowed time.

The plaintiff must state the names and addresses of the defendants: the people or business being sued. Therefore, the plaintiff must know the identity of the defendant. If the defendant is a business or corporation, the business' legal name and address can be found with the city's licensing agency, the tax assessor's office, the fictitious business names files in the county clerk's office, or the office of the secretary of state's corporate division. All corporations incorporated in a state and foreign corporations doing business in a state are usually required to designate a person to receive process (service of complaints) for the corporation.

The correct names and addresses of the defendants are needed so they can be properly identified and served with the complaint, which is required before the court will hear the case.

Because attorneys generally are not permitted in a small claims action, both parties must represent themselves. In the same vein a corporation may appear in small claims court only through an employee or an officer or director of the corporation. A corporation may not be represented in small claims court by someone whose job is to represent the corporation in small claims court. In other words, a corporation cannot use an attorney in court if the function of the attorney is to represent the corporation on small claims actions.

Certain businesses and entities other than corporations, such as partnerships or joint ventures, may appear in small claims court only through a regular employee of the entity. The representative may not be someone whose sole job is to represent the business entity in small claims court. A trust may be represented in small claims court by the trustee of the trust.

The most important consideration in a small claims case is the amount of the claim sought. A plaintiff cannot exceed the jurisdictional limit of the court. If a plaintiff asks for more than the court is allowed to award, the entire case may be dismissed. If the plaintiff sues for less than is owed, he forever waives the balance. For example, assume that the plaintiff is owed twenty thousand dollars ($20,000) and sues for five thousand dollars ($5,000), the plaintiff forever loses the right to sue for the remaining fifteen thousand dollars ($15,000). The plaintiff could have sued in a regular court for the full $20,000, but he might have waited years to have the case heard and incurred large fees and costs preparing for the trial.

There is always a filing fee for any complaint filed in any court. Courts are not free. In California the basic fee is $6 per case. Multiple filers, those with over 13 cases per year, $12 per case in California. In most states a person unable to pay the filing fee can request the court grant a waiver of fees. This waiver is called a "forma pauperis," Latin for "form for a pauper." If the plaintiff qualifies for the waiver, the fee is waived and subsequently recovered if the plaintiff wins. Put it another way: if the plaintiff wins the case, the defendant pays the filing fee as a court cost to the plaintiff.

Most of the costs related to pursuing a small claims action are recoverable from the defendant if the plaintiff wins. Examples of court costs that are recoverable are filing fees, service of process fees, witness fees and mileage. There is usually no recovery for expert witness fees in small claims cases. Also recoverable are fees for subpoenas of individuals and for subpoenas duces tecum for documents. Interest on the judgment is always awarded, and, sometimes, it is awarded before judgment. Prejudgment interest (interest running from a date prior to the date of judgment) is governed by the laws of each state. A plaintiff should always investigate to determine if it is awardable in his case.

After the trial the plaintiff presents a summary of his costs to the court for approval. Once approved, the costs are included in the court's judgment against the defendant.

****end of sample chapter view****

At this point you are ready to file a lawsuit to collect the money or other relief to which you feel you are entitled. When you reach this point, you have already done everything to resolve the matter out of court. You have probably met with the person and sent the obligatory demand letter which has been ignored. Most people ignore demand letters and threats to go to small claims court expecting it will be too much of a hassle for the creditor to pursue collection of the obligation.

A true story is that once a beginning attorney was hired as in-house counsel for a small manufacturer. Amazed by the large number of collection cases that were filed against the company, he questioned the boss. The attorney was told that bills were never paid until after a suit was filed. It was the policy of the boss to see if people were upset enough to sue. If they did not sue, he kept his money. If they did sue, he offered to settle for less than the amount sought by telling the people that his settlement amount was more than they would receive after they paid their attorney. After hearing this explanation, the attorney tendered his resignation because he did not approve of this morally questionable tactic. The attorney would have quit immediately but the canons of professional responsibility forbid an attorney from quitting without giving the client an opportunity to replace him.

While distasteful, the above tactic is a common practice among the unprincipled. Most debtors will not settle just because they are threatened with a lawsuit. The advantage of making a demand in writing is that a copy of the demand letter can be presented at court. This is proof that you attempted to resolve the matter out of court, and this attempt should not be discounted. Judges like to have these matters resolved out of court and they look dimly on parties who deliberately refuse to pay their just debts and force the other party to take less than is actually owed.

From this point on it is assumed that the reader has decided to sue. Therefore, hereafter, this book deals with the practical considerations in preparing a case for trial in small claims court.

In order to bring a suit in small claims court, the plaintiff (the person who is filing the suit) must be the real party in interest. By definition "a real party in interest" is a person actually affected by the actions of the defendant that caused the injury described in the complaint. Example: A person is hit by a car in a cross walk. The person may sue the driver for negligence, but the person's brother or sister may not sue the driver because they are not the real parties in interest to the accident. For example, assume that a person borrows a car and is in an accident. Since the driver of the borrowed vehicle is not the owner, he is not the real party in interest and cannot sue the other driver for the damage to the borrowed car. Only the owner can do that. If the owner sues the borrower, the borrower can sue the other driver because the borrower then becomes liable for the damage and is a real party. Fortunately such complicated issues regarding real parties in interest seldom arise in small claims actions.

Agents for real parties in interest can file small claims action for the real parties. Such agents are persons holding powers of attorney for the real parties or are court appointed conservators, guardians, or personal representatives. Example: The person entered a coma and cannot file the suit himself. This person's sister has a durable power of attorney from the injured party. The sister can file the suit for her sibling.

Custodial parents have a legal right to file suits on behalf of their children. In doing so, they assure the court that the child's estate is handled properly. The parent or guardian usually must first receive court approval to bring suit for the child. This is an order signed by a local judge affirming that the parent or guardian is appointed the guardian of the estate of the child and is permitted to maintain the suit. The parent or guardian then files the suit in the same manner as any other. A phone call to a local attorney will apprise a parent or guardian of local procedure. It might be necessary to have the parent or guardian appointed as the guardian ad litem to bring the suit in small claims court. The parent or guardian may then proceed with the small claims action. The costs of the appointment as guardian at litem are recoverable from the defendant if the small claims action is successful.

Most small claims actions are by individuals and seek money to cover damages which the defendant is alleged to have caused the plaintiff. Any individual can bring a suit in small claims court if he is above the age of majority (more than 18 years of age) and has not been declared mentally incompetent by a court.

When a person who owns his business files a small claims action, the owner's name followed by the name of the business should all be listed as the plaintiff. Example: George Harper owns Harper's Garage. The plaintiff should be listed as George Harper, doing business as Harper's Garage.

A partnership is a legal entity. Thereafter, debts owed to a partnership must be recovered by the partnership. In such an event, the partnership is listed as the plaintiff with the names of the partners listed for reference. For example, assume that MG Partnership seeks to sue John Roddy. The plaintiff on the small claims complaint would read MG Partnership, a general partnership, with Mark Hallen and Lloyd Garger individually. Since all general partners have the right to act for the partnership, only one partner has to sign the small claims complaint on behalf of the partnership. Except for having a partner sign the complaint for the partnership, the suit is handled the same as any other action. New York is unique in that in most of its counties partnerships are precluded from filing small claims actions.

A corporation is a separate legal entity from its shareholders. In order for a corporation to bring a small claims action, the complaint must be signed by either an officer of the corporation or a person authorized by a resolution of the board of directors of the corporation to file the complaint. Except for having an officer or other person sign the complaint for the corporation, the suit is handled the same as for any other plaintiff. An exception exists in New York wherein corporations are precluded from filing small claims complaints.

Licensing requirements may hamper filing or prevailing on a small claims complaint in certain circumstances. Most states require certain individuals engaged in business to be licensed to maintain a small claims complaint for work done in the business. Example: Most states require real estate brokers, contractors (painters, carpenters, cement workers, plumbers, etc.), automobile mechanics, TV and VCR repairmen to be licensed. If such persons are not licensed, then they are precluded by law from bringing a small claims suit to recover business debts.

Most states permit bill collectors to appear in small claims courts. In those states, the creditor assigns the claim (they transfer the claim against the debtor) to the bill collector, who becomes the new owner. The bill collector then brings the suit in his own name and after recovery usually pays 60% to the original creditor. While permitting all other types of small claims complaints, Kentucky and Texas preclude small claims actions involving interest for money lenders. The following states do not permit bill collectors (assignees) to use small claims court: California, Michigan, Missouri, Nebraska, New York and Ohio. In New Jersey, assignees of corporations but not individuals or partnerships may use small claims court. As a practical matter, it makes no sense to hire a bill collector to file the suit in small claims court. The bill collector takes from 40% to 50% of the judgment when an average person could get the judgment himself for between $25 to $50. Collection is discussed in Chapter 12 .

Almost everyone can be sued in small claims courts. State governments cannot be sued without the plaintiff first giving the state agency in question written notice of the claim against the agency. A suit cannot be filed before the state agency rejects the claim or a fixed time has lapsed since the service of the claim. The time for filing the claim against the state agency is quite short. In California it is just 100 days from the incident giving rise to the claim. If the claim is not filed in a timely manner the person loses all right to bring the suit. A person having a claim against a state agency should contact that agency's legal representative and ask for the claim form. If the agency does not have a claim form, the person should contact the city clerk or county clerk or board of supervisors and ask for the claim form. With the forms will come the appropriate procedure and time limits for filing.

If a person has a claim against the federal government, he is usually out of luck. There is no federal small claims court and the federal government cannot be hauled into a state's small claims court without its consent. Suits against the U.S. government must be brought in federal court and is usually too much bother for the amounts involved in small claims actions.

Most of the defendants in small claims cases are individuals. The suits against individuals are for what they did in their own individual capacities and not for what they did in business or as a partner or employee. This makes it easy to draft a complaint. The plaintiff simply lists each individual who caused the damage. The point to remember is that if a person is not named in the complaint as a defendant, a judgment cannot be obtained against him. There is no liability by association under the law. If a person is not named in a complaint then a judgment cannot be taken against him. For that reason all defendants must be identified in the complaint. For example, George was driving Bill's car when he hit Mary in an auto accident. If Mary names only Bill in the complaint, she will only be able to recover damages from Bill and not from George.

The second most common defendant in small claims cases is a self-employed individual where the debt is business related. A self-employed individual is treated the same as a regular individual. A self-employed individual is personally liable for the consequences of all his acts and all of the acts of his employees in the scope of their employment. This means that the owner is responsible to pay the damages that he or his employees cause while doing their jobs.

In order to bring a small claims action against a self-employed person, the plaintiff should list as defendant the name of the owner plus the business name he usually uses. Many states require persons doing business under names not their own to file a fictitious name statement with the county clerk. This fictitious name statement is a public document that lists the true names and addresses of the owners of the business. Persons having claims against the business can find the true names of the owners and file a small claims action. Example: John, an employee of TALK Enterprises, had a car accident, hitting Joan, while driving the company truck. The fictitious name statement lists the owner of TALK Enterprises as Bill Crayon. Joan files a small claims action against Bill Crayon, doing business as TALK Enterprises and owner of the company and John the driver as defendants respectively.

Besides a fictitious name statement, information about the owner of the business can also be obtained from the city or county business license office provided businesses are required to have business licenses in order to operate.

Many attorneys feel that since the employer is responsible for the actions of the employee it is unnecessary to name the employee who actually caused the injury as a defendant. On the other hand, the court may find the employee exceeded the scope of his employment (exceeded his orders or authority) the employer is therefore not liable for the damages. If the employee is not named in the action, the plaintiff will have to refile.

A partnership is two or more individuals engaged in business for profit together. All general partners are individually liable for all of the debts and obligations of the partnership regardless of their percentage of ownership. If four persons own a partnership equally (25% each), they are all nevertheless 100% liable to pay all the debts of the partnership. If one partner cannot pay his share the other partners must do so for him, and if three partners cannot pay, one must pay it all.

A partnership is a legal entity. This means that the partnership can enter its own contracts and both sue and be sued. When a partnership is sued in small claims court, both the partnership and the individual partners should be named as defendants. The reason for naming both the partnership and the partners is to avoid having to go back later and require a court judgment ordering the partners to pay the partnership debts.

For example, ABC Garage improperly fixed Jill's car. The fictitious name statement shows ABC Garage is a partnership composed of Marty Cabel and Bill Linen. Jill files a small claims complaint listing as defendants ABC Garage, a partnership, and Marty Cabel and Bill Linen, individually. The procedure for identifying partners is the same as outlined above in the subsection Individuals Engaging in Business.

Corporations are also legal entities. Corporations may sue and be sued. A corporation is sued just like an individual: by listing its name on the complaint as a defendant. The shareholders of a corporations (its owners) are not personally liable for the corporation's debts or obligations. The officers or directors cannot be sued for the actions of the corporation unless they themselves do the act that cause the plaintiff's injury. This is the limited liability aspect of corporations, their most important asset.

The full name of a corporation must be listed on the complaint. Many corporations will use fictitious names just as individuals use them. The reason for fictitious names is usually to create a warmer, more comfortable business atmosphere. For example, a business named Aunt Milly's Restaurant sounds better than Millicent Cramer's Restaurant, Inc.

Corporations are licensed by the state in which they operate. Contacting the Secretary of State will give a wealth of information. The Secretary of State's office will provide the full name of the corporation, its principal place of business and the designated agent for the receipt of process (the person who is to be served the small claims complaint for the corporation). Armed with this information, the complaint can be completed and filed.

A common lawsuit is one against the estate of a deceased person. When a person dies, if the person has a large enough estate, a probate must be opened. In opening the probate, the probate judge appoints a personal representative and sets a fixed date for the termination of creditor claims. Under the laws of most states the personal representative is required to notify all known creditors of the decedent's death and publish notice of the death in a paper of general circulation. All creditors are thereby given actual or constructive notice of the decedent's death and the time for filing the claims against the estate. If claims are not filed within the set period of time, the creditor loses all rights forever to present them and be paid.

If the claims are filed in a timely manner, the personal representative must either accept or reject them within a set time. If the claims are not accepted, they are automatically rejected. Once the claims are rejected, either expressly or by operation of law, the creditor can file suit for collection. Some states require the creditor to file the complaint for collection in the probate court, while other states permit the collection to be filed in any court including small claims court. The attorney for the estate will tell the creditor whether or not the state's law permits collection actions in small claims courts.

Naturally, a plaintiff would like to bring a suit in his home city. That is not always permitted. Each state has its own requirements as to where the suit may be maintained. The suit must be filed where the incident giving rise to the action occurred (such as the site of the accident) or where the defendant resides. Corporations may be sued in the city where their principal place of business is located. All states permit suits based on breach of contract to be brought in the jurisdiction where the contract was signed. A few other states permit a contract suit for damages to be brought in a jurisdiction where the contract was to be performed. Chapter 15 (State Laws) lists the various form requirements among the states.

Every state has enacted laws limiting the time in which various lawsuits may be brought. The states wish to keep their dockets manageable and do not want cases over a certain age cluttering their courts. The rationale behind this philosophy is that a person should look out for his own interest. There is an equitable adage at law, "He who sits on his rights loses them." Nothing is gained by belaboring the effect of the law. Until the law is changed, it is in effect. If a lawsuit is filed after the appropriate statute of limitations has run, the action will be dismissed with prejudice which means it cannot be filed again.

As a practical matter, almost all small claims matters must be filed within one year of the event giving rise to the action. Except where special time limits for government agencies exist (see above), there are no statute of limitation problems. Concern arises when a suit against nongovernment defendants is filed over one year from the date of the event that gave to the cause of action. Chapter 15 (State Laws) lists the general period of statute of limitations for each state.

The specific statute of limitations of each state can be obtained from state law volumes under the Index "Limitations of Actions" or "Statute of Limitations." Example: In California there is a one year statute of limitations for personal injury, a two year statute of limitations for breach of an oral (unwritten) contract, a three year statute of limitations for fraud and a four year statute of limitations for breach of a written contract.

The specific statute of limitations for each state starts to run from the time of event causing the injury. The time period for filing for damages for an auto accident starts to run from the date of the accident. The period for filing for breach of contract runs, not from the date the contract was executed, but from when the defendant stopped performing his obligations under the contract. For example, assume George had a written contract requiring him to provide Harry 1,000 bushels of corn for 10 years for $1,000 per year. After seven years George refused to deliver any more corn. Harry, in California, would have four years to sue George for the corn. The fact that the contract was signed seven years earlier is irrelevant because the statute of limitations runs from the date of the breach, not the date of execution of the contract.

The statute of limitations can be tolled (suspended) from running under certain conditions. If the plaintiff is unable to file the suit because of severe medical or mental reasons, the running of the statute of limitation will be suspended until the plaintiff is able to file. If the defendant tricks or deceives the plaintiff from filing his complaint, such as by promising to pay if the plaintiff does not file or concealing information that the plaintiff needs to file the suit, the statute of limitations will be suspended for the term of the defendant's improper actions. The best thing for any plaintiff to do is to file the action as soon as possible. We are talking about the collection of money that the plaintiff feels is legitimately owed him. A delay in filing the suit only complicates collection and runs the risk the defendant may die or disappear, which would only further complicate collection.

*****end of sample view of chapter****

Now is the time that tries the hearts of all plaintiffs. For now is the time that the complaint is drafted and filed. Up to this point, everything was speculative. Most people decide before reaching this point not to sue for a variety of very practical reasons: the process is too cumbersome, the money is not enough, it takes too long, the moon is in the seventh heaven, Jupiter is aligned with Mars. The fact is that many people are intimidated with the process. This is unfortunate but nonetheless all too true. Hopefully, this book should convince the reader that there is nothing to fear regarding the small claims court. It really is easy to use, but being easy to use does not translate into always winning when using it. Plaintiffs still must produce evidence to support their case in order to win. The burden of proof is always on the plaintiff.

One of the most important questions a person asks regarding small claims court is, "How much does it cost?" This is an understandable and totally appropriate question. There is always a filing fee for any complaint filed in any court. Courts are not free and small claims courts are no exception. The usual filing fee is between $10 and $25, rarely any more. In California, the basic fee is $18 per case. Multiple filers, those with over 13 cases per year, pay more. A person unable to pay the filing fee can, in most states, request that a court grant a waiver of fees. This waiver is called a Forma Pauperis, which is Latin for "Form of a Pauper." If the plaintiff qualifies, the fee is waived and subsequently recovered if the plaintiff wins the case. The defendant pays the filing fee as a court cost to the plaintiff if the plaintiff wins the case.

The most expensive cost in a small claims action is usually incurred in serving (delivering the complaint) to the defendant. State law is formalized in the manner and method of serving the complaint on the defendant. Many times a professional process server (a person who delivers complaints on defendants for a living) is employed. The process server will usually charge $50 to $100 to make the service on the defendant. In many states a county sheriff's office or police department will serve a complaint for a fee. Use of the sheriff or police officer is cheaper than a private process server, but it usually takes much longer to have the service done because service of civil process is not their primary duty.

The next item of major cost is witness fees. If a witness will not appear voluntarily, the witness can be compelled to attend by subpoena (see Chapter 5). Most states require a person being subpoenaed to live within a certain distance of the court (usually between 100 and 150 miles) and to be paid a daily fee (usually $35) and a mileage fee (usually 18 per mile). A judge will not order the loser to pay the winner's witness unless it finds that the witness was vital or at least important to the proof of the winner's case. This is policy prevents the prevailing party from incurring unnecessary witness fees with which to saddle the loser.

Most of the costs related to pursuing a small claims action are recoverable from the defendant if the plaintiff wins or from the plaintiff if the defendant wins on a cross-claim against the plaintiff. While court costs of filing fees, service of process fees, witness fees and mileage are usually recoverable, expert witness fees usually are not. Also recoverable are fees for subpoena of individuals and for subpoena duces tecum for documents. Interest on the judgment is always awarded and sometimes it is awarded before judgment. Prejudgment interest (interest running from a date prior to the date of judgment) is governed by the laws of each state. A plaintiff should determine if it is awardable in his case. After the trial, the plaintiff presents a summary of his costs to the court for approval. Once approved, the costs are included in the court's judgment against the defendant.

The basic forms for small claims courts do not change from state to state. The same basic information has to be included in every complaint. Since small claims courts are intended to be user friendly, the information is easy to provide. To show how simple the process is there is a completed sample complaint for a California Small Claims Court. Almost all states follow the same format or at least request the same information in a different order. The preparation of a small claims complaint involves filing the blanks. The plaintiff is required to state enough information to the defendant to show him why the plaintiff is suing. Many states do not even use the term small claims complaint but instead refer to it as a small claims court claim to signify the simplicity of the pleading.

In California the form is simplicity itself. The example is Michael Roddy suing John Stinemeyer for $1,500 for damage to a car. Michael Roddy the plaintiff will do the following:

1. Write or type his name, Michael Roddy, and address in the box titled "Plaintiff."

2. Write or type the defendant John Stinemeyer's name and address in the box titled "Defendant."

3. On line 1 write or type the sum $1,500, and in the space below it write or type "On August 1, 1993, the defendant damaged my car."

4. On line 2 check box 2 (a) to show that the defendant has not paid the claim after a demand was made for such payment.

5. On line 3 insert the letter representing the reason the suit is being filed in this particular court (usually either because the incident which is the basis of the suit occurred in the court's district or it is where the defendant lives).

6. If the plaintiff has filed more than 12 small claims in the last year, he must check box 4 (so he will be charged a higher filing fee). In this case the plaintiff has not filed more than 12 claims in the last year; so he leaves it blank.

7. The plaintiff prints his name and signs the claims.

The complaint is now ready to be taken to the clerk's office and filed. Once the complaint is filed, the clerk will keep the original and return two copies to the plaintiff. The plaintiff will then keep one copy of the complaint and serve the other copy on the defendant. When there is more than one defendant, the plaintiff will make a photostatic copy of the complaint to be served on each defendant.

All but a few states permit a landlord to bring an eviction or unlawful detainer action in small claims court. Warning: Do not sue in small claims court for unlawful detainer even if it is legal. All states have a summary unlawful detainer procedure that is faster and cleaner than a small claims case. The normal unlawful detainer action takes about 30 days and deals only with the right of possession. The tenant is not permitted to remain on the property pending an appeal after losing the case.

A small claims action for unlawful detainer is not so neat. In many states, the defendant can appeal and while appealing is allowed to remain on the property. The appeal of a small claims action can take months. In a real California example, a tenant had a terrible landlord who threatened and bullied his tenants. The tenant would not take the abuse. Therefore, the landlord served notice to vacate and then filed suit for unlawful detainer in small claims court in Chula Vista, California. Judgment was obtained against the tenant, who promptly appealed. While the small claims action was on appeal, the tenant remained on the property. The tenant, then, requested a finding of fact from the judge in the small claims action, which delayed the appeal. The result was that nearly nine months later the tenant was still in the apartment without having paid any rent. By then, the landlord had enough and agreed to drop the complaint if the tenant would simply move out so the apartment could be rented. The fellow tenants threw him a wild "going away" bash.

Small claims judge pro tems in Los Angeles are instructed to inform plaintiffs before hearing their cases that defendants can appeal adverse decisions and remain on premises while the appeal is pending. The courts in California do not like the use of small claims court for unlawful detainer actions because they are terribly inefficient and cumbersome. Since the legislature has given the small claims courts jurisdiction to hear unlawful detainer action, the courts must continue to hear them if they are filed there.

After the complaint is filed, each defendant must be given notice of the suit filed against him. This is known as "service." Each defendant must be provided with the small claims complaint in such a manner that the court will know that it was done. The procedural requirement for service must be followed correctly or the action may not proceed or may be dismissed altogether. A plaintiff cannot personally serve the small claims action on the defendant.

Most states (such as California and New York) will permit service of the complaint on a defendant by certified mail. The court clerk will post the complaint to the defendant's address by certified mail. If the defendant signs for it service is made. The fee for this is $3 in California. It is about the same in most states.

The problem with certified mail service is obvious. If the defendant does not accept delivery, the defendant is not served. The professional deadbeat knows better than to accept any certified mail. A few states (such as Alaska and Arkansas) have adopted statutes which hold that service by certified mail is effective even if refused by the defendant, but that is a minority view. Estimates are that nearly 60% of all small claims complaints sent by certified mail are accepted. That means defendants reject over four out of every 10 certified mailings.

When the court clerk serves the complaint by certified mail, the plaintiff should contact the clerk before the hearing date to ensure the defendant accepted service. Many clerks will inform a plaintiff before the hearing date if the defendant refused service. Some clerks do not, and the plaintiff is surprised at the time of the hearing to discover for the first time that service was not made. The court then has no jurisdiction to proceed, and the case is continued to give the plaintiff time to serve the defendant in another manner. Discovering before the hearing that there was no service causes the plaintiff the inconvenience of a needless court appearance. When service by certified mail has not been made, the plaintiff must serve the defendant with the small claims complaint in another way.

Next to service by certified mail, the most popular method of service of a complaint is by personal service directly on the defendant. Personal service of a complaint can be accomplished in one of two ways:

1. By law enforcement officers. Every state permits civil process, such as a small claims service, to be served by its law enforcement officers (sheriffs, constables or police). The fee charged is usually $25 to $50. In some states, this is the only manner of serving civil process except for certified mail. A disadvantage in using law enforcement officers is that civil service of process is not a high priority on their list of duties. It often takes an inordinate length of time to effect service. The real advantage of using law officers for civil service is that the defendants are far less likely to attack or abuse the process server. Several process servers have told horror stories of fights and assaults while attempting to serve process over the years.

2. Private process servers. Many states (check the appendix to determine your state's law) permit an adult over 18 who is not a party to the action to serve process. Some states have professional process servers who will serve process on a party for a fee of $50 to $100. Personal service of the complaint means just that. The complaint must be delivered personally to the defendant. It is not necessary to force the defendant to take the papers. Once the process server has properly identified the defendant, if the defendant refuses to take the complaint, the process server simply leaves the papers in the defendant's presence and departs. It is a fiction of the movies that a person can stand before the process server and refuse to take service and boast that he is not served. The key is that the defendant knew the papers he refused to accept were a complaint.

The least popular and most contentious means of service of process is that of substituted service. Many states have statutes which hold that when a defendant cannot be served exercising and using the normal methods of certified mail or personal service, reasonable diligence the plaintiff can serve the complaint by substituted means. In these states the plaintiff is permitted to leave a copy of the complaint at the defendant's home or business with a person over 18 years of age and in charge. The plaintiff then must mail a copy of the complaint to the defendant at the same address. Service is usually deemed complete 10 days after the mailing.

Because the defendant is never personally given the complaint, it is obvious that many defendants will simply disregard the whole matter and claim that they never got the complaint. The courts require that before a plaintiff use this method of service that the plaintiff file an declaration stating the steps previously undertaken to serve the defendant. Substituted service requires the process server to leave a copy of the complaint with an identified person at the business or residence of the defendant and to mail a copy of the complaint to the defendant at that address within 10 days. A proof of service must be filed by the process server stating the name of the person receiving the complaint.

Procedural due process under the United States Constitution requires the defendant be served with the complaint enough days before the trial to prepare a defense properly to the allegations in the complaint. If the clerk is not serving the complaint on the defendant by mail, the plaintiff should ask how many days the state's law requires the defendant be served prior to trial. The number of days varies but is usually between 10 and 30. The day of service of the complaint is not counted but weekends and holidays are counted because those are days that are available to the defendant to prepare his defense.

The plaintiff is required to file with the court a proof of service form prior to trial that states when the defendant was served. If the defendant was not given the minimum amount of time to prepare, the trial will be rescheduled unless the defendant waives the defect and agrees to go ahead with the trial. The defendant should appear at any scheduled hearings in order to protect his interest even though he may not have been served properly. Such an appearance is not a waiver of service, and the defendant can still insist on the full number of days to prepare as promised under the law.

The rules of service of a complaint on a business depends on the type of business which is being sued. A sole proprietorship (a business owed by one person or a husband and wife) is sued by naming the business and the owner (the husband and wife if owned jointly). Service is made by delivery of the complaint on the owner (husband or wife if owned jointly).

A partnership is served by delivery of a copy of the complaint to any general partner. Each partner being sued must also be served with an individual copy of the complaint.

Corporations are different from both sole proprietorships and partnerships. Corporations are required to maintain records with the Secretary of State's office in every state where they do business. Part of the information that the corporation must maintain with the Secretary of State is the mail address of the person authorized by the corporation to receive all service of process for the corporation in the state. This person is called the "designated or resident agent for process." This is the person to whom the complaint can be sent by certified mail. A corporation's resident agent may not refuse to accept service by certified mail if authorized by state law. In addition to serving the complaint on the designated resident agent for process, a plaintiff may personally serve the complaint on any officer of the corporation by personal service. Customarily it is much easier to serve a corporation by posting it as certified mail to its designated agent for service. Many corporations that do business in several states retain the services of a professional resident agents who are the mailboxes for forwarding all correspondence to the home office. Such agents may represent hundreds of corporations

There are problems in suing people in the military. Congress passed the Soldier's and Sailor's Relief Act in 1940. The point of this Act is that a soldier or sailor on active duty cannot be sued in state courts for civil matters. If a person wishes to sue a soldier or sailor on active duty (does not include the reserves) the serviceman may stop the whole proceeding by simply invoking this Act.

A San Diego law firm once represented several car dealers in their collection actions. It was not and still is not uncommon for sailors to purchase vehicles and then not pay for them. The cars were repossessed and subsequently sold by the dealers under appropriate law. The dealers then obtained deficiency judgments, but they could not collect because of this Act. There is no distinction under the Act between a person stationed across the world and someone stationed down the street who lives near a base with a wife and three kids. In many instances, the intent of this Act has been abused to obtain property without the intent to ever pay for it. This conduct is little better than theft, and use of this Act in that manner is an insult to all of the decent men and women in the military who properly pay their just debts.

*****end of sample view of chapter****

The first three chapters dealt with small claims procedure from the viewpoint of the plaintiff, the person bringing the suit. This chapter will discuss the various options that should be considered by the defendant. Actual preparation for trial should be the same for both the plaintiff and defendant. Chapter 5 (Preparation for Trial) details the steps that both parties take to prepare to present their case before the judge or the jury.

Usually, the defendant knows the basis of the plaintiff's case and why he is being sued. The defendant already has a significant advantage over the plaintiff: the defendant can reasonably compute plaintiff's damages and how the plaintiff will go about proving those damages. On the other hand, the plaintiff does not know how the defendant will present his defense. Never discount this uncertainty. The worst thing that a plaintiff can do is appear uncertain and unsure in the presentation of his case. The defendant can play upon that uncertainty to maximize his defense.

Few states require the defendant to do anything but appear at the small claims court trial and tell his side of the story. The defendant has an advantage because the plaintiff does not know if the defendant is going to contest the action or even appear at court. The plaintiff may not know all of the defense theories the defendant can expound. The plaintiff may be caught unaware at trial with the presentation of a wholly new and previously unannounced defense that he is unprepared to disprove. Because of the uncertainty regarding whether or not the defendant will appear, the plaintiff will be forced to go through the time-consuming and potentially nerve-wracking experience of preparing the case for trial. The plaintiff may unnecessarily have assembled and interviewed witnesses and have left work to attend the trial. His lost pay will not be compensated by the court.

A few states require the defendant to file with the court a responsive pleading (called an "Answer") in order to appear and defend himself against the allegations in the complaint. The court clerk in such states has a simple form that is used for this purpose. The defendant simply denies the plaintiff's claim or objects to the size of the claim. A copy of the answer is usually mailed to the plaintiff. Those states that require an answer to be filed also have fixed time limits for the answer to be filed. If the answer is not filed within the appropriate time limit (usually five to 10 court days before the trial), the defendant will be denied the opportunity to file the answer, and a default will be entered against the defendant.

Even though the defendant does not appear for trial, the court will not automatically grant judgment to the plaintiff. "Due process" still requires that the plaintiff present evidence that he is the one entitled to receive the requested damages. This process is called a "prove up." The judge will hear only the plaintiff's case and decide whether or not damages should be awarded. Just because a defendant does not appear does not mean that a judge can award damages. Perhaps no liability can be shown or the award violates state or federal law, and the judge is thereby prevented from awarding damages.

If the plaintiff presents sufficient evidence to convince the judge or jury that damages should be awarded, the plaintiff wins the action. Once the judge or jury decides for the plaintiff, the judge will issue a "Default Judgment" for the amount of damages and other relief that it is being awarded the plaintiff. Part of the judgment will be an award for the proper damages suffered by the plaintiff, the court costs in bringing the suit and the amount of interest permitted under state law.

If a default judgment is taken against a defendant, most states delay enforcement of the judgment for a period of 10 to 60 days. The purpose of this delay is to give the defendant the opportunity to file with the court a "Motion to Vacate Judgment." This is a request by the defendant that the default judgment be set aside and a new trial be held in which the defendant will appear and present his side. The form for the "Motion to Vacate" is obtained from the court clerk and is as simple to complete as other small claims court forms. The court will usually grant a motion to vacate a default judgment only on one of the following grounds:

1. An emergency arose that made attendance impossible. This can be any reasonable excuse acceptable to the court. The court must be convinced that but for the happening of the unexpected event, the defendant would have attended the trial.

2. The defendant was never notified of the hearing. The defendant must prove that he was never served with the complaint. This argument occurs most often when substituted service of the complaint was made on the defendant. If the defendant was not properly served the judgment, is null and void.

Judges are not disposed to grant motions to vacate judgments. The longer a defendant waits before moving to vacate the judgment, the more unlikely it will be granted, except where the defendant was never given proper notice of the hearing.

A defendant in a small claims case has the same right as any other defendant to countersue the plaintiff. This means that small claims court is not a one-way street for the plaintiff. A defendant can also seek justice in the form of damages and equitable relief. Important Reminder: In nearly all states, if a defendant has a cause of action against the plaintiff arising from the same set of facts that serves as the basis of the plaintiff's suit, the defendant must either file a claim against the plaintiff or have the case transferred to a formal court. Otherwise, the plaintiff will not be able to sue the plaintiff on the claim later. The purpose of requiring the defendant to file a claim for all damages arising under the same set of facts as the plaintiff's claim is to have a final one-time resolution of all claims arising under one event. States vary concerning the procedure to be followed by a defendant in presenting a claim against the plaintiff.

In a few states the defendant has the advantage of being able to wait until the day of the trial to file his claim against the plaintiff. These states permit the defendant's claim to be filed on the morning of the trial and sometimes even permit the filing at the beginning of the trial. The defendant has an advantage because the plaintiff does not know if the defendant is going file a cross claim and if so, on what grounds. In fact he does not know if the defendant will appear to contest the action. The plaintiff is usually caught unawares and may not even know prior to trial the claims against him. The plaintiff without knowledge prior to trial of these totally unexpected claims is unprepared to refute them.

When the defendant surprises the plaintiff with a last minute filing of claim, the plaintiff has one of two options. The plaintiff may:

1. Seek a reasonable continuance to prepare a defense against the allegations contained in the defendant's counterclaim. If a continuance is sought, it will always be granted. All of the work and preparation that the plaintiff has undergone to prepare for the trial that day will have to be redone again for the new trial. The plaintiff will be forced to go through the time-consuming and potentially nerve-wracking experience of preparing the case for trial again. The plaintiff may unnecessarily have assembled and interviewed witnesses and been absent from his job to attend the trial. The court will not compensate him for the lost pay of his efforts.

2. Bite the bullet and stand at trial with the evidence at hand and refute the defendant's claims to the best extent as possible.

The surprise caused by a defendant's last minute filing will severely affect the plaintiff's presentation of his case. Many plaintiffs cannot overcome such a surprise and adjust their case.

A helpful tactic is for the plaintiff to call the defendant as his first witness. Most defense attorneys rehearse the testimony of their client and tell him to listen to the plaintiff's testimony in order to color his testimony to the most attractive shade. Calling the defendant as the first witness is most unusual and unexpected. In one case the defense attorney was the former president of the county bar with decades of experience. When called as the first witness, his client nervously asked, "I'm first? What do I do?" His attorney objected to the calling of his client first, but the judge had to allow it. His client was so shaken that he made a terrible witness and the case was lost. After the trial the attorney said that in 20 years as an attorney he had never seen that tactic before. Two weeks later he had a jury trial in which he was the plaintiff's attorney. He called the defendant as his first witness and won.

Most states require a defendant to file his counterclaim against the plaintiff with the court by a certain date (usually five to 10 days before the trial). Once the claim is properly filed, the defendant's counterclaim will be heard on the same date as the plaintiff's claim. Some states will automatically reschedule a small claims case when a defendant's counterclaim is filed to give the plaintiff adequate time to prepare.

The defendant's counterclaim has the interesting effect of making the plaintiff the cross-defendant to the counterclaim. The defendant has the same obligation to prove by a preponderance of the evidence the allegations contained in the counterclaim as the plaintiff has to prove the allegations of his claim. It is possible for both the plaintiff and defendant to prevail and be granted relief in part on their cases.

Following this chapter for reference purposes is a completed defendant's claim as used in California. Nearly all states follow the same format. It really is that simple. The defendant merely states the basic reason for suing the plaintiff as the plaintiff did in his claim.

The last quiver in the sheath of a defendant is the ability to request the small claims case be transferred to a regular formal court. Transferring a case to a formal court has advantages and disadvantages to a defendant. The advantages to a defendant in transferring a case are:

1. A long delay before the case will be heard. When a case is transferred to a regular court's docket, it is placed on the last of the civil calendar. All criminal cases have precedence over civil cases. So criminal cases, which have a statutory dead-line problem, will be heard before the civil cases. Certain civil cases, such as those involving elderly parties, are given precedence on the calendar and moved to the front.

2. Attorneys are permitted to represent parties in regular court. Some states do not permit attorneys to represent parties in small claims court. A defendant may want to be represented by an attorney, especially in the situation where the defendant knows he is not able or competent to present his own case in a state which does not permit attorneys in small claims cases.

3. A defendant can recover more in damages in a formal court than in the small claims court. Example: In California the most that a person can receive is $5,000. If the defendant has a meritorious claim against the plaintiff under the same set of facts for $25,000 and the case is heard in small claims court, the most the defendant can receive is $5,000 (a loss of $20,000). In contrast, if the case is heard in a municipal court in California, which has jurisdiction to $50,000, the defendant can get the full $25,000 if he wins.

The disadvantages that could result to a defendant from the transfer to a formal court are:

1. The plaintiff could amend his suit to sue for more money. If the case is transferred to a formal court, the plaintiff is no longer bound by the limits of small claims court and can sue for damages equal to the jurisdictional limit of the court.

2. If the dispute is over a contract and the contract provides for attorney fees to the prevailing party and the defendant loses, he will have to pay the plaintiff's attorneys fee, which will be higher than if the case had been heard in small claims court. Of course, if the defendant wins, the plaintiff must pay defendant's attorney fee pursuant to the clause.

Whether or not a defendant can transfer a plaintiff's small claims case to a formal court depends on state law. If the defendant files a counterclaim exceeding the jurisdictional amount of the small claims court, the entire case with both plaintiff's and defendant's claim will be transferred to the higher court. A few states permit the transfer at the request of the defendant even though the defendant has not filed a claim or his filed claim is within the small claims jurisdictional amount. Other states transfer the case whenever a jury trial is requested by either party. Only a few states absolutely refuse to transfer a small claims case regardless of the size of the defendant's claim. Chapter 15 (State Laws) lists the transfer provisions of the various states.

****end of sample view of chapter *****

A plaintiff gets just one shot to present his case in small claims court. Most states do not permit a plaintiff to appeal a losing small claims decision. A defendant on the other hand is given the chance to appeal a judgment taken against him. For this reason it is all the more important that the plaintiff (and the defendant when presenting a counterclaim against the plaintiff) present his case in the most concise and professional manner.

It is amazing how many people seem to feel that they will win if they yell the loudest or act the most indignant in the Court. These people fail to grasp the concept of burden of proof is the same in small claims courts as any other court. The plaintiff (or defendant with counterclaims) has the burden and sole responsibility to present enough proof to convince the trier of fact, be it a judge or jury, that he should win. No degree of indignation nor sarcasm can replace the legal requirement of proof. Many seem to forget that neither the judge nor jury knows anything about the parties before the trial. The parties approach the trial with a clean slate and the judgment rendered by the court is written by the parties themselves through the presentation of their cases. For this very reason, it is important that parties present their cases in the most complete and professional manner possible.

The most common type of evidence produced in a small claims court is the type known as documentary evidence. As the name implies, documentary evidence is that of a written nature that tends to prove or disprove the material elements of the plaintiff's or defendant's case. Examples of documentary evidence are canceled checks used to prove that actual payments were made on a debt.

Documentary evidence is most often needed in situations involving the Statute of Frauds. All states have laws requiring that any contract for the sale of goods worth over $500, the sale of land, or any interest that will touch and concern land for over a year (such as a lease, easement, condition, covenant or restriction) must be in writing to be enforceable. A court may order specific performance of such a contract that is not in writing if it can be proven that a contract did exist between the parties along with one or more of the following acts:

1. The purchaser has taken possession of the land or property.

2. The purchaser has made substantial improvements to the real property.

3. The purchaser has paid for the property.

4. The party seeking to enforce the contract against the other party has fully performed his obligation under the contract.

In other words, before a person can win a suit for damages based on the sale of goods worth over $500, he must show that a contract existed for the sale of the goods or that the defendant has taken possession of the property. A landlord cannot sue a tenant for breach of a lease specifying occupancy longer than one year that is not in writing. For example, assume that George rents a building for five years but doesn't sign the lease. After two years, George moves out. Since the lease was not in writing, the landlord may not sue for the unpaid rent for the remainder of the unused term of the lease because the lease extended over one year and was not in writing.

In addition to the Statute of Frauds, there is another procedural rule called the Best Evidence Rule that can come into play if contracts are involved. Under the Best Evidence Rule, a summary of a written document, either oral or written, is not admissible as evidence in place of the original document unless it can be shown that the original document is unavailable. The unavailability must not be the fault of party using the summary as evidence. This is a terribly legalistic objection that will only come into play in those states permitting attorneys to appear in small claims case. Assume this rule is applied, and the plaintiff has the only copy of a contract and cannot find it. Before he can present what the contract said he must satisfy the court that he actually lost the contract. He must convince the court that he is not just hiding it from the court so that a different interpretation of its clauses can be alleged.

In addition to contracts, documentary evidence also consists of bills, estimates, police reports and any other tangible proof of a party's case or defense. All of this evidence must be assembled and brought to court. Any documentary evidence not in court when needed does not exist. The court will not accept as evidence that which is not in the courtroom at the time of trial because the opposing side is unable to see, verify or refute it. This is just basic fairness.

In addition to written materials, photographs and video tapes are also sources of documentary evidence. In a California case, temporary restraining order was once sought for an illegal dump on a person's property. Photographs showed that stuff was dumped on the property but it did not give the depth and detail needed. A video tape camera was placed on the property and photographed the property from several angles. Instead of arguing for an hour about the extent of the problem, the tape was played for the judge. The tape showed the extent of the depth far better than the flat pictures ever could. The case was won, and the injunction to clean the property was granted.

Another example of documentary evidence arose in a case in which a woman arrested for worker's compensation fraud. This woman was on a full disability for a bad back after telling a worker's compensation doctor that she could hardly move. Yet, despite her disability she was a participant in a rodeo. Video cameras caught her doing trick riding and also doing heavy yard work. The tape was introduced into evidence to assure that the woman gets a prolonged rest for her back at state expense.

Another form of documentary evidence is the damaged item itself. An auto body repair shop was sued by a woman because it did not repair the car to her satisfaction. The woman had pictures that really did not show the reason for dissatisfaction. The defendant claimed she was being unreasonable in her expectations and that he had done a good job. Before rendering his decision, the judge asked where the car was located and told that it was in the parking lot. The judge continued the case to the end of the docket and personally inspected the car. After examining the work, he found it to be fair but, by no means, the first-rate standard represented. The judge gave the defendant the option of redoing the work or reducing its bill by one-third to reflect what was considered the true value of the work. This was acceptable to the plaintiff, and the defendant agreed to the reduced bill. The judge would not have been able to reach this ruling had the plaintiff not brought her car to the court.

II. DEMONSTRATIVE OR RECREATIONAL EVIDENCE

One of the most persuasive forms of evidence is called demonstrative or recreational evidence. The most common form is use of charts or maps. We have all seen on television the police officer testifying in court that an accident occurred while a car was going south and another car turned in front of it. The district attorney or defense counsel would be tracing the car's path on a large map of the intersection as the officer talked.

Judges and juries both appreciate visual displays. The fastest growing field in computer graphics is computer simulations for personal injuries. That is not to say that such simulations will be used in small claims cases. If the case is worth several thousand dollars, it might be worth asking a computer specialist what it would cost to make a simulation.

Another way to create a simulation is to restage the event exactly as it happened with a video tape present. Naturally, there is always a question in the back of the mind as to whether or not the event is being accurately portrayed. As with all evidence it is for the trier of fact, be it the judge or jury, to give the appropriate weight to such evidence.

All triers of fact, be they judges, juries or judges pro tem, give greater credence to the testimony of impartial third parties than to the testimony of either the plaintiff or defendant. This is only common sense: the third parties are relatively disinterested because they are not sharing in any award. They tend to be viewed as more reliable than a party who although honest may be swept away by the emotion of the case.

Some states permit statements by witnesses in small claims actions to be used instead of the witness actually appearing. The statements must be in writing and signed under penalty of perjury. The statement should declare, "Signed under penalty of perjury that the foregoing is true and correct." Still, it is always best to have your witnesses available at trial. Since the other party cannot question a witness who is not present, judges do not have to accept a written statement or give it much effect. The court clerk would know whether or not the judge admits witness statements when the judge is the trier of the case. When the case is tried by jury, witness statements are not admitted.

Sometimes a judge will be willing to take testimony of a witness over the telephone. The only way to determine if a court will permit it is to ask the clerk. If the clerk doesn't know, he will ask the judge. Many judges will allow telephone testimony if they are the trier of fact. If a jury is deciding the case, telephone testimony of witnesses is denied because the jury cannot see them. The judge cannot see the witness either, but that doesn't seem to matter.

When a party wants a person to testify at trial, he can subpoena the person to attend the trial. A subpoena is a court order that requires a person to appear at the court to testify; failure to appear brings charges of contempt of court. Another type of subpoena called a subpoena duces tecum can be issued for the production at trial of designated documents. A subpoena duces tecum requires the person served with it to bring specified documents to court on the day of trial.

A subpoena can be served only in person and cannot be mailed. The person serving the subpoena must be over 18 years of age. In some states a party can serve the subpoena in other states if the plaintiff cannot serve it. To be safe, the subpoena should not be served by a party to the case. The subpoena form can be obtained from the court clerk. The party places on the forms the name of the person whose attendance at trial is requested along with the date and time. The completed subpoena is then copied and served (delivered) personally to the person being subpoenaed. Whoever serves the subpoena must fill out a "proof of service" stating the date and location where the person was served. The proof of service is filed with the court. If it becomes necessary to compel attendance, the court will rely on the proof of service for jurisdiction over the witness.

Most states require the party issuing the subpoena to pay the witness a daily fee and round trip mileage compensation. In California this is presently $35 per day and 20 per mile. Always bear in mind that a subpoenaed witness may be hostile to a case. It might be better not to subpoena a witness who might "forget" or "misremember" key items. Most states require a person being subpoenaed to live within a certain distance of the court (usually between 100 and 150 miles) and to be paid a daily fee (usually $35) and a mileage fee of .18 per mile. A judge will not order the loser to pay the winner's witness unless it finds that the witness was vital or at least important to the proof of the winner's case. This is a sound policy because it prevents the prevailing party from saddling the loser with unnecessary witness fees.

As an example, a copy of the form of subpoena used in California follows this chapter. This is the basic subpoena form used in all states. It really is just a matter of filling the blanks with the name of the person being subpoenaed and the date, time and place of the appearance.

Everything the plaintiff has done in previous chapters has been to reach this stage: the trial. Now is the moment of truth. The parties have their day in court. They stand before the trier of fact and present their case. After all of the time, aggravation, delay, work and preparation, the parties finally have their opportunity to present their case.

A small claims court is the court, with the possible exception of traffic court or divorce, with which the average person, whether layman or attorney, will, most likely, have some contact during his life. Most people are not sued for large amounts of money in their life. When they die, their estate might have to be probated in court but they are not present. On the other hand, statistics show that most people will be a party to a small claims court at least once in their life.

The small claims court is a specially created court in which most disputes can be tried inexpensively and quickly. The rules of the court are simple, and court procedure is relatively informal. Lawyers are usually not permitted to be present or to try the case. Claims in small claims cases vary from state to state. In California disputes not more than $5,000 can be heard in a small claims court. The trial of a small claims case is usually heard within 40 to 70 days from the date of filing of the claim. While most small claims cases involve money damages, most small claims courts have the power to grant other remedies such as ordering a person to do or not do something if the value of the act ordered or restrained is within the monetary limits of the court.

This chapter informs the reader on what is to be expected in appearing for trial. After the reader completes this chapter he will feel reasonably competent to present the case. There really is little of great concern when presenting a case. Small claims courts are justly called the "people's courts" for valid reasons. The presentation is relatively informal with each side simply stating their case and the judge dispensing the justice with the wisdom of Solomon. The judge's authority is limited. He cannot divide children in half or exceed the monetary jurisdictional amount of the court. Except for those limitations, the judgment of the small claims court is final and binding on the plaintiff.

A party appearing in any court should do everything possible to present his case in an agreeable light and to garner the maximum amount of good will. That should strike everyone as common sense but it is amazing how many people do not seem to get the message. Judges in small claims courts sometimes have rude, mean-spirited, argumentative, disagreeable and unprepared people appear before them. Most judges disregard the unprofessional persona of the parties. It is suggested that anyone appearing before a judge follow these simple guidelines:

1. Dress for success. The judge and the court staff are professionals. The judge wears a formal judicial robe. The bailiff wears a uniform, and the clerk is professionally attired. Common sense dictates that the parties dress in a subdued and business-like manner. Studies show that juries psychologically think better and higher of those individuals who dress conservatively. Whether or not such impressions are right or wrong is arguable, but if they do exist you should use them to your benefit or at least make sure that any good appearance of the opposing side is canceled.

2. Present the case professionally. A party presenting a case before a court is acting as his own attorney. All have seen attorneys present cases in the movies and television, and everyone knows when a case has been presented well. A party should attempt to present a case as professionally as an attorney. The party must be prepared. He should have gathered the evidence to be presented, brought the witnesses to court who will be called and rehearsed his presentation.

No party should ever argue with or interrupt the other side. Arguing makes good drama, but it also wastes valuable time that could otherwise be used in presenting the case. Arguments usually alienate the judge. Nothing is more disagreeable to a judge than the screaming of a person's high pitched voice or profanity. Being impolite to a judge or arguing is about as intelligent as shooting yourself in the foot.

II. EXCHANGING INFORMATION WITH THE OPPOSING PARTY

Before the beginning of a small claims court session the bailiff usually goes into the hall where the parties are sitting. He announces that each much show the opposing side any and all documents before the court is called into session. This is the first time that a defendant will see the physical evidence that the plaintiff will use against him. This will be the first opportunity a plaintiff will have to see the evidence that the defense will introduce to defeat the plaintiff's claim.

This exchange of information before the court is called in session is a practical step of the court to accelerate the case. The normal small claims case takes 10 to 20 minutes. The judge does not want to waste precious minutes with the parties milling around in open court exchanging documents. Therefore, parties should expect to both show and be shown all documents to be presented in court.

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Most of the people in the United States live or will live in rented property. For every tenant there is a landlord with superior ownership rights and control of the property. At one time the landlord was supreme and the tenant had virtually no rights to the premises. The property was rented "AS IS" under the doctrine of caveat emptor (buyer beware). Tenant occupancy was based solely upon payment of rent regardless of the condition of the property. Over the years, courts and state legislatures have eroded the landlord's omnipotent rights in the property. Tenants today have significant rights to their rented properties, and the landlord's violations of these rights can result in serious fines and penalties.

It is only to be expected that a body of law would have developed over the years to govern the respective duties and obligations of both landlords and tenants. Entire treatises have been written to discuss in detail their rights. This chapter presents in a concise fashion the rights of both the landlord and the tenant in the five most common areas of dispute. This chapter discusses a landlord's filing of a small claims action for lost rent and damages to the property. On the other side, this chapter will discuss a tenant's cause of action for Costs of repair, Retaliatory or constructive eviction, and the rent of the rent deposit.

At common law, the general standard used throughout the United States was a landlord was under no obligation to deliver the real property to the tenant in a good or satisfactory state of repair. The lessor was not liable to the tenant or his guests or invitees for injuries suffered on the real property as the results of the defects on the property. The lessor's common law immunity from injuries to persons on his property has been greatly reduced. Now, in most instances, liability will be assessed against an owner for injuries caused by undisclosed defects on the property.

The landlord is obligated to disclose the existence of latent defects on the property. A latent defect is one that the tenant could not discover after making a reasonable inspection of the property. The landlord does not warrant that the property is free from latent defects. To avoid liability for injuries, the landlord merely has to disclose the existence of those defects that he actually knows exist or has reason to suspect exist. If the disclosure is made, the landlord is immune from liability for injuries suffered by the tenant from the disclosed defects. If the landlord fails to disclose the existence of the latent defects, the landlord is liable for the injuries or damages caused by those latent defects.

The common areas of multi-unit buildings are not part of a tenant's leased property. The responsibility remains with the lessor to maintain the common areas in a safe manner. Lessors have been found liable for negligence in maintaining the common areas when injuries occurred because of the owner's negligence. The lessor must use ordinary care to make the area safe for tenants and invitees (business guests) to the property. The latest extension of liability for common areas occurred when courts found lessors liable for crimes committed by third parties. The court held that the lessors were negligent when they failed to install locks on gates leading into the common areas. The negligence theory was based on the belief that the landlord should never act in such a way as to create or promote a foreseeable risk of harm to the tenants. The landlord had notice that criminals had been passing through those gates in order to commit crimes and yet he did nothing to protect the tenants.

II. LANDLORDS MAY BE SUED FOR DAMAGES CAUSED BY FAILURE TO

Under the common law, the lessor had no duty to maintain the rented property unless there was an express covenant in the lease requiring him to do so. The modern trend in landlord tenant law is that landlords have a general duty to use reasonable care with respect to residential tenants. The landlord will be held liable for personal injuries suffered by the tenants and their guests as the result of the landlord's ordinary negligence. Liability will be imposed for such negligence only when the landlord had notice of the problem and failed to repair it after a reasonable opportunity to do so. The California Supreme Court has held landlords strictly liable for injuries caused by defective conditions of their property without proof of negligence (knowledge).

Many state courts have held the landlord liable for injuries caused by the landlord's failure to comply with housing codes. All a plaintiff has to show is that his injury was caused by a violation of the housing code. The landlord's knowledge of the violation is irrelevant for liability. Punitive damages cannot be assessed for injuries resulting from a violation of housing codes unless it is proven that the landlord knew or should have known of the violation through normal reasonable inspections.

More than half of the states have adopted the implied warranty of habitability. Under this legal doctrine, a landlord is held to the standard of an implied warranty that rented residential property is reasonably suited for use as a human residence. State law gives the tenant specific remedies against the landlord if the property is or later becomes uninhabitable. The remedies for a breach of an implied warranty of habitability are:

1. The tenant may leave and terminate the lease.

2. The tenant may make the necessary repairs and offset the costs against future rent.

3. The tenant may abate the rent, reduce it to the fair market rental value of the property with the defects.

4. The tenant may pay the full rent and sue the landlord for damages caused by the defects.

Retaliatory eviction is the eviction of a tenant for reporting housing codes violations to the proper authorities. Many states make it illegal for a landlord to evict a tenant for reporting housing codes violations. In those states a landlord may be fined for committing a retaliatory eviction. A tenant may sue in small claims court for the damages incurred as a result of a landlord's violation of the implied warranty of habitability or for any retaliatory eviction.

In most instances unless the lease agreement imposes an express duty to do so, a tenant has no duty to make any substantial repairs on the property. The tenant does have the duty to make minor repairs and to take such other steps as are necessary to prevent damage by the elements. If the tenant does not make the minor repairs, he will be liable to the landlord for the damages caused because the minor repairs were not made. The tenant will not be liable for the actual cost of making the repairs but only for the damages actually caused by not making the repairs.

A small number of states have passed laws specifically requiring tenants to:

1. Refrain from violating any housing codes.

2. Keep the property free of vermin.

3. Use plumbing, utilities and appliances in a reasonable manner.

A landlord may sue a tenant in small claims court for the damages incurred to the property by the tenant's violation of housing codes or failure to make minor repairs. The landlord is not required to evict the tenant as part of the action in order to bring the suit.

When the tenant covenants to keep the property in good repair, the condition of the property at the beginning of the lease and at the end of the lease must be compared to determine if there was a breach. If the covenant to repair does not contain any exceptions, the tenant may be liable for normal wear and tear to the property. If consideration (rent) is given for the use of the property, most courts will exclude normal wear and tear from the duty to repair. Under the covenant to repair, the tenant is liable to repair the damage to the property regardless of the cause (third persons, act of God) unless expressly excepted. When a tenant had breached an express covenant to repair, the landlord may sue for the damages incurred by the breach of the covenant in small claims court without having to evict the tenant as part of the action (although he can do so.)

Every lease agreement contains an implied covenant of quiet enjoyment. The covenant implies the landlord will do nothing to interfere with the possessory rights of the tenant. Constructive eviction is some act by the lessor or failure to act when he has a duty to act which makes the property uninhabitable. The following conditions of constructive eviction must be met:

1. The act or failure to act must be by the landlord or his agent, not third parties.

2. The result of the act is to render the property uninhabitable.

3. The tenant must vacate the premises as a direct result of the landlord's act. If the tenant does not move out, there is no constructive eviction.

A tenant may declare the lease terminated because of the constructive eviction and sue in small claims court for damages suffered or sue the landlord for the return of possession and damages suffered.

A relative of constructive eviction is the interference with the tenant's right of quiet enjoyment of the leased property. Virtually all states have held that a landlord can not anything that interferes with the reasonable use and enjoyment of the property. Interference with such rights must, by their very nature,

be determined on a case by case basis. Interference with quiet enjoyment does not require that the property be rendered uninhabitable but only that it is no longer comfortable or safe in which to reside or utilize as a result of the landlord's actions. Such interference with the right of quiet enjoyment can be any type of obnoxious behavior performed by the landlord or by other which is tolerated by the landlord which seriously impairs the safety or enjoyment of the property by the tenant.

The most prominent cases of constructive eviction involve tenants suing the landlord because of the presence of other drug dealing tenants. Trafficking in illegal drugs, especially in the inner city, has turned neighbor against neighbor. It has always been permitted for people to sue a property owner or tenant whose of property creates a private nuisance. When it is shown to the satisfaction of the court that the use unreasonably interferes with the enjoyment of the neighbors' uses of their property then the defendant will be held liable for damages and continued improper use of the property enjoined. In fact, cities themselves are now declare the buildings inhabited by active drug dealers to be public nuisances and the cities are demolishing them.

In the landlord-tenant area, tenants have taken the next step and sued their landlord for failing to evict drug dealing tenants. The claim, upon which the tenants almost always prevail, is that the drug dealing tenants pose an unreasonable risk to the safety of the other tenants and that their criminal activity interferes with the other tenants' enjoyment of their property. A suit for interference with a tenant's right of quiet enjoyment requires that the tenant prove that the landlord knew that other tenants were selling drugs and that the landlord did not evict them. This is relatively easy to prove. A complaint can be made to both the police and the landlord. If sufficient evidence exists the police will get a search warrant and investigate. Even if the police do not investigate, if the tenant produces enough evidence to the court to convince them that drug sales were going on at the premises, the court could still enter judgment against the landlord.

In a suit for quiet enjoyment, the tenant may be awarded monetary damages and even punitive damages. The Plaintiff in such a case is entitle to compensation for the reduced value of rental space during the period of the drug dealing and may even receive punitive damages up to the jurisdictional limit of the court. If there are several tenants suing a landlord for the same drug tenant, the costs of the suit to the landlord may be very high. This is a valid threat to the landlord to get his act together and evict the criminal element in his building.

When a tenant abandons property with time still remaining on the lease, the landlord has the following options available:

1. The landlord may consider the abandonment as an offer to surrender the property. If the landlord accepts the surrender and resumes possession of the property, the tenant is relieved of further liability on the lease. The fact that the landlord enters the property to make repairs or offers to rent the property to others on behalf of the tenant does not constitute acceptance of the surrender.

2. The traditional option still available in many states allows the landlord to do nothing and simply sue the tenant each month for the rent as it becomes due or wait for the end of the term and sue for the whole amount.

Many states require a landlord to attempt to mitigate his damages and try to rent the premises and apply the rent received to the damages owed by the tenant. The tenant is then liable for the difference. If the property cannot be rented, the tenant is liable for the full remaining rent owed for the unexpired term of the lease.

Once the tenant has left the premises, the landlord's suit is a simple suit for money; so it would not qualify for the summary unlawful detainer procedures of a formal court. This means that the case would be placed at the end of the civil calendar and not given any precedence over the other cases in the court docket. A better procedure is to sue in small claims court provided the damages are within the small claims court jurisdictional limit. The case will be heard much faster than in the regular court system.

Unlawful detainer is the legal remedy available to a landlord against a tenant who:

1. "Holds over" after the lease has terminated.,

2. Continues in possession of the property without payment of rent when due.

3. Continues in possession after failing to perform the duties required under the terms of the lease or after breaching the terms of the lease.

4. Continues in possession after a valid notice to quit has been served.

Unlawful detainer is a summary remedy where a "notice to quit" is served. It calls for the tenant to vacate the premises within a fixed period (usually three days). If the tenant does not leave, the landlord files a complaint in court and serves the tenant with it. The tenant will have a short period of time (usually five days) to answer the complaint. If the tenant fails to answer, the court will enter a default judgment against the tenant. If the tenant does answer, the case is set for preference on the calendar and usually heard within two weeks to a month.

It is recommended a landlord not use small claims court for an unlawful detainer action even though it is legal to do so. All states have a summary unlawful detainer procedure which is faster and cleaner than a small claims case. The normal unlawful detainer action takes 30 days and deals only with the right of possession; the case cannot be clouded by unrelated counterclaims raised by the tenant.

Once the tenant loses in the normal unlawful detainer action before a regular court, he is not permitted to remain in the property pending an appeal. This is not usually the case in small claims actions. In many states, the defendant can appeal and remain in the property rent free while the appeal is pending. The appeal of a small claims action can take months. A California case highlighted the pitfalls present in bringing a small claims case for unlawful detainer. In this case, the tenant, who happened to be an attorney, had a terrible landlord who often threatened and bullied his tenants. The tenant would not take the abuse which led to confrontations. Predictably, the landlord to serve the tenant a notice to vacate and filed suit for unlawful detainer in small claims court in Chula Vista, California. Judgment was obtained against the tenant who then promptly appealed. While the small claims action was on appeal the tenant remained on the property. The tenant requested a findings of fact from the judge in the small claims action that delayed the appeal. Nearly nine months later the tenant was still in the apartment without having paid any rent. By now, the landlord had enough and agreed to drop the complaint just to have the tenant move out so the apartment could be rented.

To prevent, such future cases in its small claims courts, California amended its California Code of Civil Procedure Section 116.220 bar the use of small claims courts to evict tenants. California small claims courts can still be used for determining other landlord-tenant disputes.

In Los Angeles, plaintiffs are informed before hearing their cases that defendants can appeal any adverse decisions and remain on the premises while the appeal is pending. The courts in California do not like the use of small claims court for unlawful detainer actions because they are terribly inefficient and cumbersome. Since the legislature has given the small claim courts jurisdiction to hear unlawful detainer action, the courts must continue to hear them if they are filed there.

It used to be permitted for a landlord to "lock a tenant out" of the premises after the lease expired. This form of "self-help" was widely used. Few states now permit a landlord to evict a tenant unilaterally. All states have unlawful detainer statutes to evict tenants wrongfully in possession. The unlawful detainer action is a summary procedure and therefore given preference on the court's calendar. Most states recognize that "self-help" can result in breaches of the peace and have abolished it altogether.

Forcible entry and detainer is a tort whereby a person, usually the landlord, unlawfully evicts a tenant from the leased premises. States that do not permit "self-help" remedies to the landlord will find the landlord liable for damages suffered by a tenant who is evicted or whose possession of the property is inhibited by the lessor. California makes it a crime for a landlord to terminate utilities to a tenant for any reason and fines a landlord $100 per day for any forcible entry or detainer act.

IX. TENANT'S AGREEMENT TO LIQUIDATED DAMAGES ON BREACH

The parties in a lease may agree that a breach of the lease by either party will entitle the other only to the remedy of payment of a fixed amount of money. These clauses are enforceable if they represent a true attempt to limit damages before a breach has occurred and are entered in good faith. Generally, these clauses are used more in a commercial setting where rent might be based on a percentage of monthly gross income. As long as the parties agreed to accept a fixed amount of rent in the event of a breach, the stipulated amount is what the court will award in the event of the breach, even if the actual damages are less than the stipulated amount.

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One of the most common type of cases to appear in small claims court involves damages arising from motor vehicle accidents. The only cases of this type that should be brought to small claims court are those involving damages to vehicles and other personal property. Only claims for minor personal injuries should ever be brought to small claims court. The normal settlement or award for personal injuries is usually more than the small claims jurisdictional amount. In practice, insurance companies tend to settle legitimate cases for three times the medical bills to cover pain and suffering. Example: A person has an arm broken, and the medical bills are $2,000. The insurance may settle for $6,000. In a situation where the car incurred $2,000 in damages in addition to a broken arm to the driver, the plaintiff could sue in California's small claims court for $5,000 (which is only the compensation for the car and medical bills) or sue in the municipal court for the car damage, medical bill and pain and suffering.

It is important to check individual state law to ensure small claims courts can be used to collect damages for motor vehicle accidents. Several states do not permit suits for either property damage or personal injury arising from motor vehicle accidents in their small claims courts. New Jersey does not permit personal injury suits but does permit property damage suits arising from motor vehicle accidents.

This chapter presents the procedure of small claims courts in the motor vehicle accident case and explains how to prepare and present a case before the judge. Most cases are poorly presented, and it is difficult to decide the cases when the proper presentation has not been undertaken. Through this chapter the reader will understand the basic standard of competent preparation needed to handle the case.

I. EFFECT OF NO-FAULT INSURANCE ON SMALL CLAIM COURT

Nearly 15 states have adopted no-fault auto insurance in some form. The implementation of no-fault insurance in those states has the effect of limiting the right of an injured to sue in both regular and small claims courts. To pursue a suit in a no-fault state, the plaintiff is first required to comply with the terms of the state's insurance code. This usually means that a claim must be submitted to the plaintiff's insurance company for processing before a suit can be filed. The plaintiff cannot sue the defendant until after the plaintiff's insurance company has ruled on the claim. Most no-fault states follow the Massachusetts model that treats small claims court as an appeal court to review the administrative determination of the insurance companies on whom should be paid and how much.

If a person suffers damage as a result of an accident in a state having no-fault insurance, the person should contact his insurance agent for a determination of what his rights are under the state's insurance law and his policy. No-fault insurance means that each party's own insurance will fix each insured's car and pay for property damages. The only issue of contention is which insurance company will pay for the personal injuries suffered by the parties.

As a practical matter, an insurance company does not care if the other one is sued by its insured. Any award the insured might get would reduce the amount that the insurance company of the insured might have to pay. For that reason, each insurance company will work with their insured and explain the rights that the insured has to sue. Speaking with the insurance company is the easiest way to determine the injured party's rights in a no-fault state. Another way is to consult with an attorney who specializes in auto accident cases.

Under the laws of all states, an owner of a vehicle is responsible for the negligent injuries caused by that vehicle when driven by a person with the consent of the owner. Some states make the owner entirely liable for the full amount of injuries caused by the driver whereas other states (such as California) have limits of $15,000 on the amount that an owner can be liable for the accident caused by a person driving his car.

Obviously, if a car is stolen and the thief runs over a person, the owner will not be liable based upon the consent theory. An exception to this rule exists in some states if a person leaves his keys in the car, and the car is stolen. The owner might be sued for the accident based upon a negligence theory. Such vicarious liability is based on the belief that the car would not have been stolen and the accident would not have happened if the owner had not left the keys in the car. In some states, the act of leaving keys in a car is viewed as gross negligence because it is foreseeable that such cars will be stolen and used in committing crimes.

Many states impose liability on the owner of a car under the theory of "negligent entrustment." Under this legal doctrine, if an owner loans a vehicle to a person in a negligent fashion, the owner is liable for any damage that the driver causes. Under this theory owner liability is not limited. The most common example is an owner who loans a drinking driver his car. The owner is liable for negligence when the drunk driver gets into an accident. Negligence is a legal term stating no one should do anything that creates a risk of harm to anyone else. If a person does such an act and someone is injured, the person who did the act causing the injury is liable. When a vehicle is loaned to a person under circumstances that dictate it is foreseeable that the driver would cause an accident, the owner will be held liable for the damages of any accident in which the driver becomes involved.

It is absolutely imperative that a party to a accident case have all favorable witnesses present at court. One good disinterested witness is better than five friends and relatives (unless they happen to be priests and nuns). Often the only way to explain the strange situation of the cars after the accident is through witnesses. A client and his wife once witnessed a horrible accident while driving north on Interstate 101 in California. A car several lengths in front of them swerved onto the shoulder and without stopping made a sharp right angle, shot across all the lanes and was hit on the side by a car going south. The car going south spun around and hit a small truck head on. The south bound car was up on the shoulder of the south bound lane; the truck that it last hit was spun around facing north. To all appearances it looked as if the truck had caused the accident. The client's wife was a former nurse, and they stopped and administered first aid. The driver causing the injury was obviously drunk. At least six people were seriously injured. The client and his wife were the only disinterested witnesses. They waited for the highway patrol and gave their statement. The officer had thought the driver of the truck was the cause and was going to cite him until the client told him how the accident happened. Because he was available as a witness, a drunk driver did not get away with his crime.

Whenever there is an accident and police are called, a police report is usually prepared. Some police departments will not write a report unless the property damage is over a fixed amount (usually $100) or a personal injury has occurred. When a police report is made, it always makes sense to get a copy the report. If it is favorable, then it should be used. If the report is unfavorable, it is good to have the information so it can be refuted. It is best to assume that if a police report is unfavorable the other side knows of it and will use it.

Almost all states permit police reports as evidence without the police officer having to be present to testify. The only way to refute an unfavorable report is to have the police officer prepare a supplemental report, subpoena the police officer for cross-examination (which usually does not change the content of the report) or refute the report through an accident reconstruction expert.

Usually the police report decides the case. The court tends to give great import to the opinion of a trained police offer as to the interpretation of what caused an accident. The well founded belief is that an independent, disinterested and trained investigatory officer is in the best position to observe, collect and interpret the facts preceding and involving an accident. Police reports are critical whether they help or hurt a case.

Occasionally police reports are in error as to the facts and if that error is not caught before trial, it can mean disaster. A judge tried a case involving an accident where the plaintiff produced a police report that showed a diagram of the accident scene. The officer was not present, and the report was written a week after the accident. The judge was familiar with the area. The officer had drawn the scene in reverse. The explanation of his conclusions did not fit the scene, nor did the officer's explanation fit the scene if it was reversed and corresponded to the story of the defendant. The defendant had not reviewed the police report before the trial. As the judge reviewed it in court, it was he who realized that the officer got the sketch wrong and the facts backward. The defendant, who happened to drive across the scene of the accident frequently, recognized that the gas station and store were on the wrong corners.

When a police officer writes a report, he often cites the driver he believes is most culpable for the accident. The citation is for a violation of the state's motor vehicle code. If the driver is charged by the district attorney for a traffic offense and convicted before the small claims case is tried, the plaintiff can introduce that conviction to prove the accident was caused by the convicted person's violation of the vehicle code. Example: A person arrested for drunk driving will have a hard time proving to a judge that the accident in which he was involved was not caused by his drunk driving.

One way to refute a police report or to prove the cause of an accident when no police report was made is through accident reconstruction. Most police departments have officers who are trained in accident reconstruction. These officers are trained to judge speed of a car by skid marks and the force of collisions by the damage caused. These officers can be hired to give private opinions on cases not before their departments. They might be hired for from $200 to $1,000, depending on the scope of the case.

Sometimes an accident reconstruction is a godsend. A judge had a case where a person was turning left across a southbound lane and was hit. The officer investigating the case cited the driver who was hit for failure to yield. The judge had pictures taken of the accident and paid special attention to the other driver's skid marks. The judge measured the skid marks and took that information to an accident reconstruction expert. After reviewing that information, the expert opinion was that the other driver had been traveling about 50 mph on street with a speed limit of 35. Given the point of impact of the vehicle, the expert opinion was that there would not have been an accident if the other driver had been traveling one mph slower (still speeding by 14 mph). The judge took that reconstruction expert's opinion to the district attorney and convinced him not to charge the client.

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The most common type of small claims case is one for the collection of money owed. The claim arises in a contract situation such as landlord-tenant (Chapter 7) or the more simple loan arrangement. Where the claim is to pay money, it is of paramount importance that the debtor (usually the defendant) had an absolute obligation to pay the money to the creditor (usually the plaintiff).

A suit for money owed is initiated like any other small claims case. The plaintiff (the person who is owed the money) must be the real party in interest. Example: Mary Hope loans Alice Chambers $5,000. Mary must file the suit. Mary's brother, sister or parents lack standing to commence the suit on Mary's behalf unless one of them has been appointed by a court as her legal representative or they have been granted a power of attorney by Mary. In such case the representative would be filing the suit in Mary's name. If Bill was the representative the caption would read, "Bill Jones, representative of the Estate of Mary Chambers, Plaintiff vs. Alice Chambers, Defendant.

Usually, small claims actions are usually filed directly by the individuals who seek recovery on money they claim is owed to them. These individuals can bring a suit in small claims court if they are above the age of majority (more than 18 years of age) or minors legally emancipated and have not been declared mentally incompetent by a court.

Many businesses and individuals with large numbers of accounts (such as doctors, lawyers and other professionals) do not have the time or wish to be involved with the inconvenience of collecting accounts. As a service to such businesses and individuals an entire industry has developed called "collection agencies." For a fee (40% to 50%) these agencies will attempt to collect money owed on straight forward contracts. The fee for the collection service appears excessive but what must be remembered is that the agency collects nothing unless it recovers and executes on a judgment. Most of the risk is on the collection agency. The fee paid is deductible on the creditor's income tax return as a business expense, reducing the net effect of the fee to about 25%.

While many states permit individuals and businesses to sue in small claims court for collection of personal and business debts, not all states permit collection agencies to sue in their small claims courts. While permitting all other types of small claims complaints, Kentucky and Texas preclude small claims actions involving money lenders for interest. New York is unique in another way: forbidding corporations and insurers from using its regular small claims court. Instead, it has created a special commercial small claims court where only corporations, partnerships and other business associations may sue. The following states do not permit bill collectors (assignees) to use small claims court: California, Michigan, Missouri, Nebraska, New York and Ohio. In New Jersey, assignees of corporations, but not of individuals or of partnerships, may use small claims court.

Probably one of the most recurring type of collection cases in small claims court involves bad checks. In most states the district attorney will not seek criminal charges unless there are three or more checks that total over a fixed amount (usually $100). If the check is large enough (perhaps $1,000) the district attorney might institute criminal charges with one check. When a person is given a bad check in a large enough amount to make the effort worthwhile, the person should go to the district attorney's office and file criminal charges. If the district attorney will prosecute, the creditor need only sit back and let the district attorney prosecute the defendant criminally. If a conviction is obtained and the defendant is given probation, the court will order restitution (payment of the bad check) as a condition to avoid jail. If the district attorney decides the case is too small to prosecute, the creditor can sue in small claims court for the value of the check.

Small claims courts are ideally prepared to handle bad check complaints. The average small claims court complaint for a bad check involves a relatively small amount. Because of the size of the check some businesses do not sue and instead choose a path of embarrassment as punishment for the offender. There was a business man who ran an ad in the paper listing the name and addresses of all the writers of the bad checks he had cashed. Within a week he received payment on about a quarter of the bad checks. Most states have some type of bad check law that permits a business, and in some instances individuals, to sue fo