Tip of The Month- Small Claims Cases
Introduction to Small Claims
Most victims of theft or fraud are ripped off by less than a thousand dollars. Sometimes people are accused of stealing or breaching a contract, when in reality it is a simple misunderstanding. Oftentimes, the cost of hiring an attorney to represent you will be greater than the amount of money in controversy. In those instances, if you do not have an attorneys’ fees clause in your contract or if there is no statutory award of attorneys’ fees for your claims, hiring an attorney simply does not make sense. If you find yourself in this situation, filing or defending a Small Claims case as a self-represented litigant (commonly referred to as a pro se party) is your best option.
There is no need to be nervous about representing yourself, Small Claims Courts do not even permit attorneys to file cases. If you file a Small Claims case, the Defendant may hire an attorney, at which point you will be allowed to hire an attorney. However, attorneys are very rare in Small Claims cases. So rare, in fact, that despite having taught classes on Small Claims procedures, I have only entered my appearance in one Small Claims case ever.
Kinds of Small Claims Cases.
In Colorado, Small Claims Courts are available for people with damages that do not exceed $7,500.00. Although other cases are permitted, Small Claims cases generally involve people fighting over money, personal property, or the performance of a contract. However, Small Claims Courts cannot hear cases which involve libel, slander, or evictions.
Where Do You File?
Before filing a Small Claims case, make sure you are filing in the correct Small Claims Court. To sue someone in Small Claims, the Small Claims Court must be located in either:
(1) the county where the defendant lives, or
(2) the county where the defendant is enrolled in as a full time student at an institution of higher education, or
(3) the county where the defendant is regularly employed, or
(4) the county where the defendant has a regular place of business, or
(5) the county where real property is located in the case of security deposit dispute or in the case of enforcement of
What Do You File?
Colorado has standardized forms for parties to fill out and file. These forms are identified by their JDF (Judicial Department Form) Numbers. Before doing anything, you should review Colorado’s Small Claims Instructions (JDF 248) (https://goo.gl/juEXuy) and Colorado’s Small Claims Handbook (https://goo.gl/0fqeou). These documents will have important information for you and I encourage you read these documents before filing anything, whether you are the Plaintiff or the Defendant.
If you are a Plaintiff, the first step is to fill out a Notice, Claim & Summons to Appear for Trial (JDF 250) (https://goo.gl/YmsAho).
Leave the Notice and Summons to Appear for Trial box shown here blank:
Once JDF 250 is completed, you can file it in a Small Claims Court. When you go to the courthouse to file your case, the court will pick a date and time for trial. That is when the clerk will fill in the Notice and Summons to Appear for Trial box. Remember that the case must be filed in the proper county or you risk wasting your filing fee.
If your claim is $500 or less, the filing fee will be $31. If your claim is more than $500 and less than $7,500, the filing fee will be $55. After you have filed JDF 250, you must have the Defendant served with the paperwork. Service can be completed by the sheriff, or by anyone over the age of 18 that is not a party to the case. Make sure the Notice, Claim & Summons is served more than 15 days before the court date.
If you are a Defendant that has been served a Notice, Claim & Summons in a Small Claims case, you must file a Response and/or a Counterclaim by filling out those sections in the Notice, Claim & Summons shown here:
Note that the schedule of filing fees is included for your information. Once these sections are completed, you can file the Response and Counterclaim with the Court. If you are filing before the trial date, you must mail a copy to the Plaintiff.
If you have questions about initiating or responding to a Small Claims case, most courthouses have Self-Represented Litigant Coordinators provided by the state to help you fill out the documents correctly. While they cannot offer legal advice, Self-Represented Litigant Coordinators are a good resource to make sure you are following the correct procedures, which will help ensure that your filing is not rejected by the court. See a list of Self-Represented Litigant Coordinators here (https://goo.gl/BrNnih).
How to Prepare
To prepare for your Small Claims case, you need to be organized. The first thing you need to do is make an outline of your argument. In your outline, you want to first describe your legal issue. Second, you want to describe the rule that affords you a legal right. Third, you want to analyze why under your circumstances you deserve to win. Fourth, you want to conclude your argument.
Here is an example of a Plaintiff’s legal argument outline: Let’s say that you sold your car to your neighbor for $1000 and the neighbor was supposed to pay you $500 the day you sold the car and $500 two weeks later. However, the neighbor only made the first $500 payment. Now it is three weeks after you reached the deal and the neighbor owes you $500. Therefore, the issue in this case is a breach of contract. The rule is that when you enter into a contract, you need to follow the terms of the contract. The analysis is that under the terms of the contract, the neighbor was supposed to pay you $500 one week ago, but did not pay you. The conclusion is that the neighbor owes you $500. Your outline will be used for your own testimony to the court. Also, you will want to come up with questions for the Defendant and any witnesses that will help you prove your argument.
You will also need to gather any photographs, receipts, emails or other evidence that you think will help you prove your case. You should organize your evidence to make it coincide with your outline. Make several copies of your evidence so you can share them with the court and the other party. You also need to make sure your witnesses are going to be available on the day of trial. You can subpoena your witnesses by following the instructions in JDF 79 (https://goo.gl/4lM6NM).
Moving back to our car sales example, let’s now say you are the Defendant deciding what evidence you need to defend your case. You acknowledge the contract, but one week after making the arrangement, you lost your job. Knowing you had $500 due in a week, you emailed the Plaintiff and asked for a two-week extension to make a payment. The Plaintiff emails you back and says, “that is fine.” You call to confirm this with the Plaintiff, but Plaintiff’s husband says Plaintiff is not home. However, he (the husband) saw your email and replied, “that is fine.” When you are preparing for trial, you want to bring the original contract (if it was written out), as well as the emails. You will also want to make sure the husband is at trial to testify, so you will want to follow the rules for subpoenas.
If you are nervous about your trial, you may want to go to the courthouse and watch a few Small Claims cases so you can understand how the process works. You can call the courthouse and find out when Small Claims trials will take place and where to go to watch them. Also, you may want to practice making your argument out loud or in front of a mirror.
First, do not be late! If you are a late Plaintiff, your case will most likely be dismissed. If you are a late Defendant, you will most likely have a judgment entered against you. You need to know when your trial is scheduled and where it is scheduled. Some courthouses are small and easy to navigate, while other courthouses are large complexes with several buildings on the grounds. It is not enough to be at the courthouse on time—you must be in the courtroom on time! I also recommend that you dress appropriately. While a suit and tie is not necessary for Small Claims court, you certainly want to be presentable, so I recommend dressing in business casual attire. This means pants should be khakis for men and knee-length skirts or casual pants for women, and shirts should be long-sleeved collared or polo tees for men and blouses or knit sweaters for women.
On your trial date, you will most likely be ordered to mediate before the actual trial takes place. Mediation is a process of negotiations between the parties to try and help you settle the case without holding a trial. Sometimes the court has mediators available to help, while other times the court simply asks you to speak with the other side and see if a settlement may be reached. Everyone has been a mediator at some point in time—if you have ever helped to sides reach an agreement, you have mediated. Mediation is confidential except for a few extraordinary circumstances, like threats of violence. Therefore, anything that is said to try and settle the case during the mediation will not be admissible in the trial. Mediation is usually voluntary, but when the court orders mediation, you must participate. However, you will not be punished if you cannot reach an agreement.
If you cannot reach an agreement at mediation, you will have a trial. The Plaintiff will present their case first. The Plaintiff will call his or her first witness. Oftentimes the only two witnesses will be the Plaintiff and the Defendant. In that case, the Plaintiff will call himself or herself as a witness to testify about their case and present evidence. Then the Plaintiff can call the Defendant and any other witnesses to testify. The Defendant will have a chance to question the witnesses after the Plaintiff does.
After the Plaintiff has called all of the Plaintiff’s witnesses, it will be the Defendant’s turn to present their arguments, witnesses and evidence. The Plaintiff will have a chance to question the witnesses after the Defendant does. Once both parties have presented their cases, the court will decide who wins.
Please understand that these are general rules for Small Claims trials. The court has the ability to deviate from the traditional trial format. I have mediated and watched many Small Claims cases and have seen courts make adjustments to the format for many different reasons. Therefore, it is extremely important to pay attention and follow the court’s instructions.