Filing Your Small Claims Suit

Your 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 file.

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 information:

• 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.

  Suing the 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."

  A Limited 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 special rules.

  Suing the 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.

  Corporations only 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.

  Remember, everyone, 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.

• Your complete 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 invaluable.

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 lose.

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 final questions:

1. "How do I properly get these subpoenas served on my witnesses?"

2. "Do I need to notify you before trial that a witness has been subpoenaed?"

3. "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 involuntarily.

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 handcuffs.