Many states in the United States, as well the Canadian provinces and other nations with legal systems based on the British model, have established “small claims” courts to hear civil suits for modest amounts of damages. These courts go by a variety of names (such as “Magistrate’s Court”) and may also handle other functions such as resolving landlord and tenant disputes or issuing arrest warrants. This article discusses factors to consider before filing civil suits in small claims courts.
In any situation where you are seriously injured and/ or have more than $10,000 in property damage, you should consult a lawyer before making any decisions about how to proceed. For less serious cases, however, consider the following options:
(1) Informal Resolution.
Say that your neighbor accidentally hits a tennis ball through your bedroom window, or his teenage boy punches your teenage boy in the face, causing a gash that requires stitches. You might have a few hundred dollars in expenses for repairs or medical bills. These are claims that should be resolved informally but, if not, are potential candidates for a small claims court.
Your first course of action should be to politely approach the responsible party and request that he or she pay what is owed. Provide copies of any medical bills, repair invoices, or other relevant documents. Try to say as little as possible. Do not demand an apology and do not allow yourself to be drawn into an argument. The more you talk, the more likely you are to say something that might damage your case.
If the person claims to be unable to pay, ask about his or her insurance coverage. Frequently, a homeowners policy will cover backyard sporting accidents or violent behavior by the insureds children. If there is such a policy, you should obtain the information necessary to file a claim.
(2) Criminal Proceedings.
Another option, when you are the victim of criminal behavior, is to call the police. If the police make an arrest, follow up with the prosecutor and inquire whether he or she intends to press criminal charges and, if so, whether there is a possibility that the court will order the offender to pay restitution to you. If you can obtain adequate restitution through criminal proceedings, it may not be necessary to take further action.
(3) Small Claims Court.
If you are unable to resolve the case informally or through criminal proceedings, then consider consulting a lawyer. Many lawyers will not charge fees for initial consultations for simple property damage or personal injury claims. Decide on a potential budget for attorney’s fees based upon the total amount of money in dispute. For example, if you have $2,000 in repair bills, then it might be reasonable to pay $300 to $500 for legal representation. A lawyer might be willing to draft a demand letter and represent you in small claims court for a $300 flat fee. On the other hand, it would not be reasonable to pay a lawyer $1,500 or more to handle that particular claim.
Small claims courts are designed to accommodate ordinary people with no legal training, but it is still better to have a lawyer if it is practicable to obtain one. If you have to proceed without a lawyer, you will need to learn how to properly file a claim and how to properly serve the claim on the opposing party. You will also need to prepare your case and present it during the trial. The court may have training material to help you do this. It is also a good idea to attend a few sessions of the court and watch the trials before your own court date.
(4) Collecting the Judgment.
If you win in small claims court, the court will give you a “judgment,” which is a piece of paper stating that the responsible party owes you a specific amount of money. The court will not, however, force the party to pay. In order to collect the money, you might have to file a “lien” on his or her property (if he or she owns anything substantial, like a house or a car) or a “garnishment” on his or her wages or bank account (if any). You might also be able to force the sale of his or her property in order to pay your judgment.
If it sounds like judgments are sometimes worthless, well… frequently they are. Even when a judgment is not completely worthless, it can take a long time to collect a significant amount of money. On the other hand, if the party has insurance coverage but was previously unwilling to file a claim (or to provide you with the necessary information to do so), then having a lien slapped on his house might change his mind!