Filing Your Initial (Statement of) Claim Form
You must provide seven crucial pieces of information.
With few exceptions I have filed my claims in Brooklyn Small Claims Court, mainly because it is conveniently located to my office and my patients either live, work, or do business in the five boroughs of New York City. Consequently I keep a completed Initial Claim form on hand for when the occasion arises. Other readers may need to file a claim in a court other than Brooklyn, and will therefore require the Initial Claim form of that court.
PLANNING TIP The forms of specific courts can be obtained with a written request to the small claims court clerk that includes a self-addressed stamped envelope. The request must state whether you are suing as an individual (a nonincorporated entity) or as an incorporated entity. This will determine the type of form you receive and the filing fee you pay. When you request the Initial Claim form ask for any instruction forms or pamphlets that can guide you. One advantage of going to the small claims office and obtaining, filling in, and filing the Initial Claim form is that you find out immediately if you made a mistake.
The Initial Claim form differs in appearance depending on the small claims court from which it is sent. Some Initial Claim forms appear complex and can be intimidating at first blush. However, all ask for only seven pieces of basic information.
Because you may make mistakes in filling out the form, make a few copies of it for practice, then complete each line with exactly the information that is being asked for – no more and no less.
You must provide only these seven pieces of information:
EFFICIENCY IN FILING YOUR INITIAL CLAIM FORM AND SCHEDULING YOUR HEARING
Call your small claims court office the day before you intend to file your claim and inquire what date the small claims court summonses are being issued for on that date. This information alerts you to possible scheduling conflicts. You don't want to find out at the last minute that either you or the person you're sending to represent you can't make it that night, thus forcing you to have to refile your claim and waste five to seven weeks! Before getting on line to file your initial claim, go to the front of the line at the small claims court clerk's window where you will find conspicuously posted a calendar showing the hearing date of the summonses they are issuing at the moment.
PLANNING TIP If you have the patience, and your faith in the mail service is intact, filing the Initial Claim form in person at the small claims court window can be avoided by mailing the completed form, with a stamped self-addressed business-size envelope and the filing fee. Call the small claims court clerk in advance to verify the correct amount of the filing fee for your kind of case (for example, individual versus individual, or individual versus corporation) and what form of payment is acceptable (for example, personal check, money order). If you have done it all correctly you will receive by mail a memorandum such as the one shown in that notes the date, time, and location of your hearing. On the other hand, if you made a mistake your papers will be returned to you with your errors noted for you to redo. Never be reluctant to call the court for the status of your paperwork, but allow 10 to 14 days for mailing and processing by the court.
OBTAINING DOCUMENTS HELD BY THE DEFENDANT OR OTHER PERSONS THAT YOU BELIEVE WILL HELP YOU PROVE YOUR CASE
Upon occasion the defendant or some other person has in his possession a document that will be useful in helping you to prove your case. The use of a Subpoena for Records is at first a bit intimidating because it has to be served (delivered to) on the defendant in person by someone other than you, and there are specific rules for the way service has to be performed.
Compelling an Unwilling (and Possibly Helpful) Witness to Testify
In a court hearing neither the plaintiff nor the defendant is permitted to introduce what is known as hearsay evidence (information that was heard/said/written by another person). Such evidence is generally inadmissible because it is indirect testimony-that is, information offered as evidence that does not come directly from the experience of the plaintiff or the defendant and as such does not permit cross-examination. Consequently, if there is another person whose testimony is important, and perhaps even vital, to corroborate and help prove your claim, you can compel that person to come to your hearing and give testimony.
To accomplish this you will need to obtain a Subpoena to Testify and have it served on the party you want to testify. You can obtain a Subpoena to Testify at the small claims court clerk's window. The clerk will prepare it for you upon request at no cost. You must supply the clerk with the index number of your case and the name and the address (no P.O. Box numbers) of the party you want to subpoena. The subpoena must be served in person on the party you want to testify and it must be hand-delivered to that person. The server must give the person being served a fee (legal payment to testify) of up to $15, depending on the state. The server must then complete an Affidavit of Service, have it notarized, and return it to the plaintiff. The plaintiff can mail or bring it to the small claims court clerk who will make it part of the case record.
WARNING You cannot obtain the Subpoena to Testify until the clerk is certain that the summons is in the defendant's possession. When the small claims court clerk files your claim, he sends the Notice of Claim to the defendant by regular mail and certified mail, return receipt requested. It typically takes 7 to 14 days and sometimes much longer for the receipt (showing that delivery was accomplished) to be returned to the clerk of the court. Therefore, the clerks will routinely advise you to check at the window 10 days before the date of your hearing to verify delivery of the summons. The clerk may be reluctant to search your file if you request it by telephone (because big city courts are usually pressed for time and short-staffed). I recommend waiting three weeks before calling to verify whether the clerk has received the certified return postal receipt indicating delivery of the summons (be prepared to give the case, index, and docket number).
USING THE COURT CALENDAR TO YOUR ADVANTAGE
When you arrive at small claims court the night of your hearing, there will be posted outside the door of the main courtroom a list (the "calendar") in numerical order of the cases being heard that night. It looks like this:
If an error in scheduling has been made and your name does not appear on the calendar, there is an information officer stationed outside the courtroom who can advise you.
PLANNING TIP To avoid errors in scheduling you can call the small claims court the day before your court hearing and inquire, "What number am I on the calendar for the hearings tomorrow night?"
PREHEARING ATTEMPTS TO SETTLE
You can also call the debtor the day or evening before the hearing, to remind him that the hearing is on schedule and that you will be present. And then you can add, "Maybe we can arrange a settlement now."
If the defendant shows up (5% to 10% occurrence), there will be a 30 to 45 minute opportunity to locate and approach him to try to settle your differences before the hearing. Try it. Sometimes the results are surprising.
A MICRO PREVIEW OF A TYPICAL EVENING IN SMALL CLAIMS COURT
Almost all of us get anxious and tense about going on stage. I was no exception. I recall how nerve-racking it was the first dozen times I went to my hearings. I sympathize with persons who are easily flustered because I'm one of them. For those of you who like a bit of rehearsal before going on stage, here's what you can do:
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