How to Sue Someone in Small Claims Court (and Win)

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Real Estate Appraiser with Appraisals Guaranteed

How to Sue Someone in Small Claims Court (and Win)

 

This has to be my least favorite topic: how to sue someone.  And it bears stating right up front: if you can at all avoid going to court, do so.  Suing someone should be your last option.  However, there are times when there's nothing else to do but file a claim.  So...

Here's how you do it:

1) Determine that it is a "small claim."

In Virginia a small claim is one under $5,000.  Look for information about your state here:

https://www.nolo.com/legal-encyclopedia/small-claims-suits-how-much-30031.html

 

2) Determine the statute of limitations for a claim.

In Virginia, it's 3 years.  

You don't want to delay past the time where you are able to collect.  Find out what it is in your state:

http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html

 

3) Get a commitment from the other party that he is NOT going to pay.  

This doesn't mean send 50 invoices.  Call the guy up, on the phone, or drive over to his office or house, and knock on the door.  Ask him, "are you aware I'd like you to pay this fee."

This could take care of the problem. In some cases, the non-paying client simply doesn't know he has to pay.  In others he's had time to think about it or collect the money.  

In any case, it's an essential step because this is your "Exhibit 1" for your court date later on down the road.  You attempted to resolve this issue long before relying on court.

Document what you did.  Even it if was a phone call, write down the time, etc.

Of course, if you are ignored, simply move on to the next step.

 

4) Contact the deadbeat's boss.

Explain to the boss that you had an agreement with the person you're going to sue and that he has not honored his end of the agreement.  Stick to just the facts (don't tell the boss the guy's a jerk, etc.).  Present to the boss the attempts to collect, etc.  Be brief.  Ask for an email to send supporting information, perhaps old email conversations from the deadbeat, or the original agreement you had, etc., etc.

Don't be surprised if the boss defends his employee.  Don't threaten; don't mention court; just present the facts if you are able to.

If the boss says "OK, we'll take care of it, then it's game over, but anything else, continue on to the next step on this list.  By the way, you just completed your "Exhibit 2" for later.

 

5) Send the soon-to-be defendant a certified letter, through the U.S. Mail.

And use the address most likely to get to them.  A real estate firm, for example, has someone there at the front desk all the time, which is good.

In the letter, include copies of the invoice you've already sent and copies of the emails or other communication efforts (phone call times, etc.), that you've made.  Keep the letter short and have it serve as a summary:

"I've attempted to collect $X for Y fee, and these are the things I've done..."

Impose a deadline in the certified letter of another two weeks.

You've probably figured out by now that you have "Exhibit 3" for later.

 

6) File the claim.

This is a blog about suing someone in small claims court, and you'd think this would be step number one.  Look how far down the list this is!  Look how patient you've been!

Do you know who appreciates patience?  

The judge!

Do you know who hates people who are trigger happy when it comes to lawsuits?

The same guy.

You have made other efforts; you've even spoken to someone else who knows them; and you've sent a letter.  Not once have you made a threat or otherwise acted out of emotion.  Not once were you non-professional.

So file the claim--it's time.  

If the courthouse is close, drive there.  Clerks are oh so much friendlier in person than on the phone.  

You're going to have to pay about $50 for the filing fee.  You're going to have to name the defendant and provide a physical address.

Include a separate page with a brief summary of what happened.  Include dates:

  * I did service on X date

  * I contacted defendant on Y date by email

  * I contacted defendant on Z date by phone

  * I contacted defendant's boss on ABC date by email

  * I sent certified letter last week

Don't dump in all 100 of your papers into the file--use the bare minimum.  Bring the rest with you to court when that day comes.

Include in the amount you are suing for not just the fee, but interest (use a small amount like 5%), the certified mail charges, and the filing fee).

 

7) Wait.

A sheriff will deliver the summons to the defendant.  This act alone could have enough force to have the defendant pay his bill and close the issue.

Look for a copy of the summons in your own mail.  Call the courthouse later that same month if you do not receive one.  You want to verify the date, time, and location of the trial.

 

8) In court...

This is your big day.  You're in court because the defendant didn't respond to any of your requests to be paid.  He wasn't bothered that his boss knows.  He didn't respond favorably to the certified letter.  And he wasn't intimidated by the sheriff.

Here's how this works:

A) Avoid anything other than brief, cordial communication with the defendant.  He had his chance before.

B) It could happen that (slight chance) he wants to pay that morning, right before court.  If that's the case, accept only a certified check or cash and only meet at the courthouse.  You can't miss your court date because of any further shenanigans on his part.

C) If the defendant wants to settle immediately but does not have cash or a certified check, then agree to "mediation," once inside.  The judge, among the first things he decides that day, will be which cases will go to mediation.  Again, agree to mediation ONLY if the defendant has specifically told you that he wants to settle (for the full amount plus fees, etc., or to what you ultimately want).

D) Assuming the defendant does not want to talk, settle, or use mediation, be prepared to wait for a little while.  You might go up first, or you might have to wait through ten other cases.  If it's the latter, be professional while waiting your turn.  Some of the small claims cases are really funny--don't laugh.  Don't cast any level of presence till it's your turn.

E) Since I didn't mention it already--wear a suit.  I don't care if you're a plumber, electrician, janitor, or other, typical, non-suit-wearing person, you will wear one in court!  

F) If relevant, bring witnesses or at least affidavits.  


9) Your case:

You're up!

A) Focus first on the agreement.  You had an agreement with the defendant prior to doing work for him.  Ask to present that to the judge.  The bailiff will walk over and take it from you.

B) Present the work product (or summary of the work product).  Include dates, times, duration, etc.  Keep it short.

C) Present any support for the agreement (follow-up emails, text messages, phone messages recorded, etc.) that demonstrate that the defendant expected work from you or intended to pay you.

D) Present your initial attempts to collect your fee.

E) Present your exhibits (see above).

F) Rest your case early--don't drag on and on.


10) Two sides

There are two sides to every story.  Don't interrupt the defendant when he is telling his side.  Consider that the defendant might tell a different story.  Consider that the defendant might outright lie.  

Guess what defense doesn't work!  

"But, your honor, he's lying!"

Yeah--not gonna help ... he said/she said does nothing for your case.  What you need in a case where the defendant is lying is your agreement (and support for your agreement).  What you need are your witnesses.  What you need is to show that there was originally a very different situation than the one here today.

Respond to the other side, when it's your turn to talk, with the same level of professionalism and composure that you've had up until now.  



11) What if you lose?

If you lose, you have to consider whether or not you did a good job of presenting your initial agreement with the defendant.  It is possible that you did not have a good enough agreement (contract, handshake, etc.) to ever win a court case.  If that's the case, then think about cutting your losses.

If the other side lied, and you can prove it, but you couldn't prove it in the courtroom because you needed additional information, then appeal.  File the appeal, then gather up the new information, and return to court again.

 

12) What if you win?

Cash the defendant's check, pop the champagne, and head to Vegas, right?

Wrong!

Winning the case and collecting the money are two different monsters.

Send the modified invoice again and see what happens, but...

Be prepared to file a summons of interrogatory.

And that's probably a good topic for another blog!

 

13) Disclaimer:

I'm not a lawyer; I only play one on the internet.

 

In conclusion, remember that suing someone in small claim's court is a tedious process that will cost you a small amount of money and time.  And know that it doesn't result in instant payment.  If you can at all avoid going to court and settle outside of it, do so!

But if you can't, then follow these steps--and win!

 

Comments (2)

Larry Riggs
Century 21 Redwood - Frederick, MD
GRI, SRS Your Frederick County Specialist

A couple of things I noticed and am familiar with only because I have sued someone in small claims court and investigated what to do beforehand. 

First, check state law as far as calling the boss. In some states that could be reason for a damage suit against you.

Second, in court your agreement should be attached to the original filing so the judge already has a copy. If you reference an agreement that is not filed with the original papers the judge may not allow it in court. I say this because someone filed a frivolous suit against me and their attorney did not attach referenced documentation. I won the case, the lawyer got chewed out by the judge and the plaintiff ended up having to pay me money. 

Apr 19, 2014 01:32 AM
Anne Corbin
Long and Foster - Lake Anna - Spotsylvania, VA
Serving Lake Anna & Central Virginia

I worked in the legal profession for over 15 years and it is important to protect your interests. I am amazed that landlords have to go through so many more hoops to get a tenant out of their property. We should all sit down and read some of the laws -- there are some doozies out there.

Feb 02, 2019 06:20 AM