Filing Your Small
step-by-step guide through the courthouse.
You are on your way to
the courthouse and the clerk's office of your court. You are ready to
Two minor points: 1) In
order to sue, you must be the party interested in the outcome of the
case; you cannot represent anyone else's interests unless you are an
attorney; and 2) Only a child's parent or legal guardian can pursue a
claim on his or her behalf.
Once you are in the
office for filing civil claims, let the clerk know what you are doing
there. He or she will probably provide you with a form for your
statement of claim, complaint, or petition for relief. If not, and you
need to make your own, you will need to include the following
Your full name,
address, and telephone number. You will want to be found if the
clerk needs to contact you about trial dates or anything else
concerning your case. Include your daytime telephone number if
there is a place for it on the form. If any of this information
changes while your lawsuit is underway, you should write to the
clerk. Once your case is filed, it will be given a case number.
All of the documents in your case will be kept in the clerk's
office in this numbered file. You should get a copy of what you
give to the clerk, but if you do not, make sure you have the case
number if it is available so you can put it on all correspondence
and refer to it in telephone calls.
The correct name and
address of the defendant(s). Is this silly? No, its very serious.
People do business mainly under three different forms: the
proprietor, the partnership, and the corporation. If the defendant
is a business, the correct name and form of business is important,
because if you sue the wrong business entity, your case might be
dismissed without any fight, although you will not lose your right
to file your case again against the right party. If you sue in the
wrong city or county, you may be able to have the case transferred
to the right court, but it would delay your case. The power of any
court is limited to a specific geographic area, precinct,
district, city, or county. A process server cannot go to a post
office box. Get a street address.
What if the person
or party you want to sue lives in another state? No problem. Every
state has a Long Arm Statute, so named because it allows the long
arm of the court in your state to reach into other states and grab
people into your court. In order for someone to be grabbed brought
into the courts of your state, there must be have been some
significant contact between you and the person in your state. For
example, a motor vehicle collision may have occurred in your
state, or a contract may have been signed there.
individual or business proprietor. The proprietor is an
individual who owns a business. In order to properly bring him or
her into court, you need a full name and residence address. An
individual can only be sued in certain places, and the county of
residence is usually the primary place. To be sure, bring all the
addresses you know for this individual. If you can have the
defendant served in more than one place, the process server will
have an easier job. If you learn that the person resides in a
county or city other than yours, ask the clerk if you can sue in
yours because of the kind of case you have.
If you are suing two
or more defendants, no matter what business form(s) they operate
under, if one defendant is properly within the geographical
boundaries of the court, there is a way to bring the others into
the same court. Again, ask the clerk.
If you are suing a
business and do not know the owner's name or what business form it
operates under, you need to find out! Your secretary of state will
tell you if it is or is not a corporation, and you can find out
who owns a business by calling or going to examine the business
license in your local business license office. In some states,
business names or trade names are indexed in the city or county
records. These give the business name and the name and address of
the person or corporation doing business under each name.
Suing a partnership.
Under general partnership law, if you serve any partner with the
papers, the partnership is properly sued, and you get a judgment,
it will be against the whole partnership. To be successful,
though, you must show that you are suing a partnership on your
court papers. Your naming of the defendant would read something
like: "Mike Savage, a Partner of Happy Trails, Ltd., A
Partnership is a business created where a bunch of investors
(limited partners) turn over their cash to a general or managing
partner to invest or manage. If you dealt contrarily with a
limited partnership, the general or managing partner should be
sued where he or she lives, and the partnership named in the
papers. Many states have recently created another type of
partnership, a Limited Liability Partnership. If your search of
business records shows that your potential defendant is one of
these, your lawsuit may be subject to different rules about who
needs to get the court papers. One other, the Professional
Association, may exist in your state and also be subject to
corporation. As stated previously, corporations are fictitious
legal entities. They are ghosts, legal entities that exist solely
because the state legislature has said they do. Like parents take
care of their children, states take care of their corporations. So
suing one is a little more technical. When you sue a corporation,
you name the corporation you are suing as a defendant, for
example, "XYZ Corporation," but you direct service to
one of the people who are part of the corporation.
exist through their individual officers, agents, or employees.
Only a few of these can be served with suit papers to properly get
the corporation in court. As a general rule, only those people who
have a management-level job can be served with legal papers for
the company. In each state there will be a person named in the
corporation papers on file with the secretary of state who is the
person available to be served court papers; this is the agent for
service. Usually it's a lawyer. The president or chief executive
officer can also be served.
including fictional legal persons, has a right to notice, and it
is assumed that if even a minor corporate manager is served with
legal papers, it is likely that he will contact the higher-ups in
the company about it.
The rule in most
states is that you can successfully bring a corporation into court
by suing any of these people in any county where the corporation
has a principle place of business or where the office of the agent
for service is. Again, the clerk will know.
A clear, concise,
and complete statement of your claim. This is done in the body of
your statement of claim or complaint. If you can state it in one
sentence, great. Use one paragraph at most. If you have more than
one claim, write a separate sentence or paragraph for each.
How much you are
suing for in each claim, as well as the total. This is known as
the ad damnum clause. Remember, the total amount cannot be above
the maximum you can sue for in your small claims court. You do not
need to state how you calculated the amount of damages you are
seeking. That can be left for trial.
signature. Your local rules may require that it be signed or sworn
to and signed before the clerk, so ask before you sign. Make sure
that you print your name legibly under your signature, so there is
no problem knowing who you are if you need to be contacted at any
point in the process.
Once you have
provided all this information, pay the filing and service fees.
Don't worry, the clerk will let you know how much. Get a copy of
what you just filed.
WAIT! Before you
leave, ask if the clerk has any rules or guides available
explaining procedures in that court. Many have brochures that will
give you the nuts and bolts, as well as tactics to avoid danger
and pitfalls. Once you get this information, read it. It will be
What Happens Next
The clerk will keep the
original of your Statement of Claim or Complaint in the court file,
and send a copy to the marshal, constable, or sheriff to be served on
the defendant(s). A summons will be attached to the claim sheet. The
summons says, in effect, "You are being sued. You only have a
short time (usually between 10 and 30 days, depending on local rules)
to respond by filing an Answer or Counterclaim. If you fail to respond
within that time a judgment will be taken against you." In other
words, if the defendant doesn't respond, he or she will automatically
If the process server,
who will serve the defendant with the summons and a copy of the
Statement of Claim or Complaint, cannot locate any person you have
asked to have served, the clerk will let you know. You may need to
investigate further to get a current or better address.
Get Your Subpoenas!
Before you leave the
clerk's office, if you are planning to call any witnesses during your
trial besides yourself, get subpoenas for each of them. Subpoena means
"under penalty." A subpoena tells the witness, "Come to
court, or else," and puts the power of the court behind it to
force an appearance in case he or she is reluctant or shy.
Your witnesses may be
your friends or relatives, but they may not be available to testify if
they need to work, or if they "just don't feel like it" that
day. A subpoena will excuse them from work, school, or almost
everything except emergency surgery or death. Even though you may
trust that your brother or best friend will show up in court if you
ask him to, be sure with a subpoena.
Ask the clerk three
"How do I
properly get these subpoenas served on my witnesses?"
"Do I need to
notify you before trial that a witness has been subpoenaed?"
"What do you I
do if the subpoenaed witness doesn't show up?"
With subpoenas you can
force people to come to court because you need them as witnesses and
require them to bring evidence to court that you need for your case,
but cannot get otherwise. This second kind of subpoena, a subpoena for
the production of documents and things (or subpoena duces tecum), will
get both the witness and the documents or other things you need as
exhibits into court. There may be a charge for the subpoenas; you may
want to wait until you know exactly how many you will need before
getting them from the clerk. Usually, this can be handled by mail.
Before you leave, ask the clerk if the subpoenaed witnesses are
entitled to any fee for the inconvenience of coming to court. Witness
fees are usually minimal, but must be offered or paid if you want the
judge to enforce the subpoena by bringing your witness to court
If a subpoenaed witness
fails to appear in court and is essential for you to prove your case,
the judge can either postpone the trial to give you a chance to get
your witness there, or send a court officer, a sheriff, or constable
to secure the attendance of the witness by any means necessary. Yes,
these people, ordinarily large of stature, can even use their
Mediation and Arbitration
Divorce and Children
Trademark and Copyright
Security, Medicare and Government Benefits
and Estate Planning