I have asked Jessica Mangrum to be a guest columnist for this week’s topic. – Luke Ellis
I want to represent myself in small-claims court, but I don’t know what to do or how to get started. Can you get me pointed in the right direction?
Last week’s column discussed how to file a lawsuit without an attorney. Before filing the lawsuit, however, you should give some consideration to whether the lawsuit is appropriate.
Perhaps the primary consideration should be deciding whether it is likely that you will be able to collect any judgment if you win the lawsuit. Simply because the judge or jury rules in your favor and decides the defendant owes you money does not mean that you will actually be able to make him pay you. If the defendant does not pay, you must seek to recover the judgment using a means (called an “abstract of judgment”) that is somewhat complicated and might require legal assistance. Winning the case in small claims court could be a hollow victory if you are unable to recover the judgment.
Another consideration involves the potential of a counterclaim. Depending on the nature of the dispute, you should recognize the possibility that your filing suit may well cause the defendant to countersue you, while he may have otherwise dropped the matter if you hadn’t filed suit.
In addition, be sure to consider the legal validity of your claim. Just because you feel the potential defendant has caused you damage does not necessarily mean that you are entitled to sue. This is because the law has special rules as to what can be recovered as damages in a court of law. For example, some damages could be considered too remote from the conduct of the defendant to be recoverable.
There are additional factors to consider. For instance, some claims are subject to arbitration. More and more these days, companies are inserting arbitration agreements into their contracts that bind consumers to an arbitration proceeding instead of allowing them to assert their rights in court. You should also know that either party has the right to appeal the case to county court, where review is de novo (anew), meaning you will go through another trial. The decision in the county court is final and not subject to appeal.
This article appears in June 18 • 2004.