A Big Guide to Small Claims Court- Part III: One Crazy Night

This is the third in a multi-part series that explores and explains filing and winning a small claims court case.  When available, you can access the other parts by clicking here and here.

We’ve already explored what kinds of cases get brought in small claims court and the basics of bringing claims in small court.  Now we will go over what to expect when you show up for your court date.

When you do, you’ll be sent to a courtroom that looks something like this:

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You may see your adversary milling about.  Say hi.  Or don’t.  Keep in mind that you’re going to see them a few times that night or day and likely run from room-to-room together, or just glare at each other across the room. If you don’t see your adversary there, they may not have shown up. That situation is addressed, below.

Before you get into the courtroom, there is going to be a calendar nearby that looks something like this:

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That is the order that the clerk will call the cases.  You should try to see who is before you or, if there are numbers, what number you are. That will give you some sense of the wait.  At about the time the Court is supposed to be in session (a fancy way of saying “start”), a clerk, or possibly a Court Officer (“bailiff”) who will inevitably have one of the strongest local accents you have ever heard will give you some instructions.  Listen carefully.

Typically, what he or she will say is that if you hear your name and you’re ready to go to present your case to a judge, mediator or arbitrator (explained below), say “ready.”  If you hear your name and you want something from the court other than to try your case that night, say “application” or “motion.” Most applications are made by the defendant – the person you are suing – and they generally involve asking for more time or asking for the case to be dismissed (you lose!) for one reason or another.  As the claimant, the person who started the case, you want this case to be heard and be heard now.  So treat any “application” accordingly.  And when your case is called, best to just say “ready!”

What happens if the deadbeat does not show up?  Well, when your case is called you will have one of those “Buhler . . . Buhler” moments.  And then, assuming the clerk did not get the notice they mailed returned because you had the address wrong [link], you win!

Sort of.  If your adversary does not appear, you’ll eventually be sent to an arbitrator, referee or judge, to argue your case without anyone arguing against it.  Whoever hears the case will likely write a decision giving you everything you want.

Conversely, if you don’t show up your case will likely be dismissed (defendant wins). In that case, you can start the case again because that is not considered a “dismissal on the merits.”  But you’ve wasted everyone’s time.  In some jurisdictions, if you do that too many times, you’re going to get banned from using the court.

What if no one shows up?  Either the court will dismiss the case or “adjourn” it to another date.  If you know you can’t make it, best to call in advance and ask for an adornment and offer to notify your adversary, although the Court may insist that they notify the adversary of the adjournment through their process.   

If everyone is there, its time to see the judge.  Well, maybe.  Due to the volume of cases that come up in small claims court, the court really likes when cases are resolved without “judicial intervention” or “by stipulation.”  Generally, you’re going to be given a choice: talk to your adversary and resolve the case, use a mediator, use an arbitrator, or see the judge.  Depends on the court.

Some courts send you right to “mediation, “where a volunteer lawyer will try to suggest a resolution after hearing what everyone has to say. Nothing the mediator does is “binding.”  It's just a chance to see whether the case can be resolved “on consent” so that the Court does not have to come to a decision.  As part of the each side makes an opening remark about their case and then the mediator talks to each side alone to see where compromise is possible.  

While mediation is possible in some cases, we don’t generally recommend it in a non-payment case. We’re fairly sure that small claims court is not the first time you’ve tried to resolve the case with your non-paying client.  If you’re client is going to be unreasonable by forcing you to file the lawsuit, it is best to go right to a judge.  It’s a binary proposition: either they’re going to pay or their not. And now that you’ve had to take the time to come to court, you’re not in the mood to give discounts.  Unless you are.  Then mediation could help.  Of course, if you’re facing a counter-claim, mediation is a good option.

Up next, we’ll give you some tips into how to resolve a case where you’re adversary wants to settle, whether the settlement is reached by mediation or just because you all decided to settle it after the case was filed.

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