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Your Guide to the Small Claims Process

Many of the Kohn Law Firm's clients ask that we "enter a judgment" against their debtor, without being fully aware of how the process works. Some learn by necessity, when a disputed matter requires their presence in court. We thought it might be helpful to provide a simple overview of the procedure, so as to allow for a better understanding of just what's happening to a claim in suit or active litigation. This issue of the newsletter will review small claims matters (i.e. actions in which the amount claimed is $5,000.00 or less). Future issues will address large claims, as well as post-judgment legal action.

The small claims legal process begins with the drafting of a Summons (which provides notice to the defendant that he or she is being sued) and a Complaint (which explains the basis of the plaintiff's claim). These documents must be served on the defendant and filed with the court. Service upon the defendant is generally effected by personal delivery of the summons and complaint, although some counties now allow for mail service in small claims matters. Moreover, if personal service is unsuccessful after a reasonable effort, this requirement may be fulfilled by publication in a local newspaper and mailing to the defendant's last known address.

The summons sets forth a return date and time. This is the initial court appearance, and is essentially a "sifting process." The defendant is instructed when and where to appear if he or she wishes to dispute the claim. Failure to do so is simply construed as an admission of liability, consistent with the allegations made by the plaintiff in the complaint.

If the defendant fails to appear at the initial return date, a default judgment is entered in favor of the plaintiff. Judgment will similarly be entered if the defendant appears and admits liability. The judgment may then be docketed for a minimal fee (usually $5.00), so as to create a judgment lien in favor of the plaintiff (now judgment creditor) against all real property owned by the defendant in the county where docketed.

If the defendant appears on the initial return date to dispute liability, judgment will not be granted to the plaintiff. Instead, a pre-trial conference will usually be held or scheduled for a future date. This is an informal meeting with the court commissioner, for the purpose of identifying the issues and discussing the possibility of a voluntary resolution or settlement. Since no formal evidence or testimony will be presented at this time, the actual parties and their witnesses need not be present -- appearances by their attorneys will suffice.

If no voluntary resolution is reached, a formal hearing date is set. This is the small claims equivalent of a large claims trial, although usually much less formal and time consuming. It is often held before a court commissioner, as opposed to a judge. In almost every county, a representative of the plaintiff and defendant (and other additional witnesses, if necessary) must be present to provide factual testimony. Although a lawyer may help present the case and argue legal issues, he or she cannot testify as to the facts of the matter. All written documentation and other physical evidence to be relied upon must also be brought and presented at this time.

After each side's case has been presented, the court commissioner renders a decision. In most counties, litigants who disagree with the decision of a court commissioner have the right to request a trial de novo before a judge, provided that they make such written request in a prescribed time period. If no such request is made, judgment consistent with the commissioner's decision will enter once that time period has elapsed.

This is a general overview of the small claims process. There are additional details and the procedures may vary in different counties. If you have any questions or would like further explanation, our staff will be happy to help!

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