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Do You Really Need to File a Small Claims Lawsuit?
Before you go to the trouble, money, and time of finding out how to file a small claims lawsuit, you need to first ask yourself whether filing a small claims lawsuit will be worth it. While many people may advise you to sue, it is important to realize that it's not always the best option. Suing someone, even in small claims court takes time and resources. Here are some questions to answer before you start filing your small claims case:
- Will the money you receive from the lawsuit be less than the money it will take to pursue the claim? Don't just figure in court fees, also figure in the amount of work time lost.
- Have you tried other possible means of resolving the problem peacefully and outside of the courtroom?
- Do you have enough evidence that supports your claim? If you haven't watched courtroom tv programs, you may want to catch a few, often cases are decided based upon the existence of evidents such as contracts, checks, etc.
- Is the claim valid and legal? This ties into the evidenciary support. It is absolutely vital that you know that the claim you have is within the legal bounds. If you're confused, or unsure, you might want to consult with free community legal aid.
- Is the amount you are suing for less than $5,000? If it's a greater amount, you might want to reconsider, as small claims court requires the amount be $5,000 or less (this depends upon the state, in some states it's $7,500. Be sure you check to find the maximum for the state in which the defendant resides or in which the indident occurred).
- Do you have the information necessary to have the other person served? You will need to be sure you have the full name and address of the person you will be serving with papers.
If you can answer all the above questions with a resounding "yes," then you will be asking "Okay, so now how do I file a small claims lawsuit since I obviously have a problem."
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1. Contact the County Clerk's Office
The first step in filing your small claims lawsuit is to contact the county clerk's office. There is one catch - the county clerk you contact needs to be the clerk in the county where the incident occurred, the defendant lives, or the property in question is located. Doing so will make you aware of the laws and procedures for that county, and you can request any forms be sent you should they be unavailable for download on the website. Generally speaking, the form you will want will be called "Statement of Claim" with some variations dependent upon state and county.
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2. Fill Out and Submit the Paperwork
Next, you will need to fill out and submit the paperwork. The fee for submitting the paperwork usually is in proportion to the amount you are suing for. For instance, in California, it will cost $30 if you are filing for between $0 and $1500 in damages; $50 if you are filing for between $1500.01 and $5,000 in damages; and $75 for between $5000.01 and $7500. Make sure you understand the fee structure for your state.
When filling out the paperwork, it is important that you are as exact as possible with your figures. Attach any copies written documents that you have available that support your claim to the paperwork. If you are an independent contractor or if you run your own business, this sort of documentation is why you always want to get things in writing.
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3. Serve the Defendant
Once you have filed your case with the court, you'll need to have the defendant in the case served with papers. There is a form that will need to be filled out alongside the statement of claim form, called the statement of service. There are a few different ways you can serve the defendant. You can have a process server deliver the papers, you can have the papers served by mail, or you can have the county sherrif serve the papers. Be aware that there may be additional fees involved with having the individual served.
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4. Go to All Hearings
Once the paperwork has been filed, there will be a hearing. If the defendant does not appear at this hearing, then the case enters into default pending the judges decision. This is one of the reasons it's vital to provide as much hard evidence in favor of your case as possible when filing. Should the defendant show up and agree, the case will be settled; if the defendant shows up and denies they are responsible for the money owed, then it's possible, should the judge deem it necessary, that the case could be escalated to trial.
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5. Deal With the Outcome
Finally, once the trial has ended and a judgment in the case has been entered into the books, you'll have to deal with the outcomes of your case. Should it be disagreeable to you, there sometimes is a 10-day window where you can petition the decision. While you may have been going it alone on the case up until now, should you need to appeal the decision, you will need legal counsel.
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- "All About Small Claims Court" http://www.jud10.org/CountyCourt/SmallClaims/claims.htm
- "Small Claims Basics" http://www.courtinfo.ca.gov/selfhelp/smallclaims/scbasics.htm
- Courthouse front Via SXU.HU/Linder6580