SMALL CLAIMS

General Information

What Is Small Claims Court?

Small Claims Court is a place where individuals can have their case heard and a judgment rendered by the Court without the necessity of hiring an attorney.

Why Use Small Claims Court?

Small Claims Court has a number of advantages. It is fast, inexpensive, and it gives finality. A typical lawsuit progressing through the District Court can take anywhere to 6 months to 3 years to obtain a Court judgment. Most small claims actions are heard within 60 days. The typical cost of litigation in the District Court is between $3,000 and $20,000 for contested matters. Small Claims Court requires a you to pay a small filing fee (between $35 and $60 depending on the size of your claim) and a service fee to a constable (between $6 and $30). A small claims action can also give closure to a dispute by having a third party makes a decision regarding the relative merits of each parties case. Thus you no longer have to wonder what you may be entitled to.

Jurisdictional Limits

Only certain cases can be heard by a small claims judge. There are three basic rules. First, the defendant must live within the county where the Small Claims Court is located. Second, the amount of the dispute (or at least the amount you are asking for) must not exceed $5000. And third, you must be asking for an award of money. If you are asking for the return of property, you are dealing with issues that must be handled by a different Court.

Venue

Venue is defined as the geographical location of a Court that has proper jurisdiction to hear your case. A small claims action may be brought in any Small Claims Court in the county in which the defendant resides, the incident occurred, or your contract was signed (unless the contract provides otherwise). There are often a number of Small Claims Courts in the county in which you may file your legal action so you can chose the one that is most convenient to you.

Who Are Small Claims Judges?

In Utah, Small claims judges are attorneys who volunteer their time to help individuals with disputes. They are not paid for the time that they spend on the bench.

Evaluating Your Case

Before filing a lawsuit, it is important to evaluate the strengths and weakness of your case, the likelihood of success, the costs of litigation, and the likelihood of collecting your judgment. This is what attorneys call risk analysis. It may be wise for you to consult with an attorney prior to the filing of your case to obtain some basic advice in this area.

For those who wish to do their own risk analysis, consider the following:

(1) If you are successful in your litigation, do you believe that you would be able to collect your judgment from the losing party. If yes, it may be worth proceeding. If no, it may be a waste of time and effort.

(2) Identify all of the legal and factual issues in your case. Each case has what attorneys call "elements" or specific things that must be proved to win the case. In order to prevail, you must not only prevail on the law but on the facts as they apply to the law.

(3) Determine if there is any interdependence of issues or facts.

(4) As to each factual or legal issue assign a percentage value as to your chances of success on that fact or issue.

(5) Combine all of the percentages and then divide by the number of factors to get the probability of success if your case is litigated.

(6) Do an analysis of the cost of litigating your case by adding up the filing fees, the value of your time, the cost of any expert witness or any documents that you may need.

(7) Compare the costs of litigation with the anticipated judgment if successful. You do this by multiplying your percentage chance of success times the amount of judgment you are seeking and then subtract the costs of litigation. If the result is less than zero, litigation may not be helpful to you.

Who Can Sue In Small Claims Court?

As previously mentioned, any individual person may file in Small Claims Court. The Utah Code also provides that corporations may sue in Small Claims Court on behalf of themselves through an authorized employee. Further, that corporations are not required to be represented by attorneys in Small Claims Court. This is a change from the normal law which requires all corporations to be represented by counsel in Court. However, if you are attempting to collect a claim for someone else you may not file such a legal action in Small Claims Court. An example of this would be an individual acting as a collection agent, or an individual to whom a claim had been assigned. If you purchase a claim from someone, you cannot file such an action in Small Claims Court.

Who Can Be Sued?

Any individual or business can be sued in Small Claims Court. However, there may be restrictions on which Small Claims Court can hear the case. For example, special rules apply to individuals who are not residing within the state of Utah. Such individuals may only be sued in their state of residence or in the county in which the injury occurred.

Who Do I Sue?

Sometimes the question arises as to who is the proper defendant in a lawsuit. This is particularly true if you are suing a business. If you are a suing a partnership you must serve one of the partners. If you are suing a limited partnership you must serve the general manager. If you are suing an L.L.C. you may serve any of the managers. If you are suing a corporation, you must serve the registered agent. On your small claims affidavit, you should list the name of the business, any d/b/a's (other names) that it is operating under, and the name of the owner, manger, or agent who is being served. After the name of the individual to be served, you should place their position with the company. For example, IFC Corporation dba I Fix Cars, Phil Jones (Registered Agent). In addition, you may list as parties being sued any individuals that you feel are responsible for your financial injury. These can be officers, employees or agents of the business.

The Defendants Address

Once you have determined to sue an individual and/or a business you must have an address where legal papers may be served upon them. You may serve an individual at their home, or place of business. A corporation is served at the office of its registered agent. A limited liability company may be served at the office of its registered agent or upon any of its mangers at their home or business address. A partnership may be served upon any of the partners at their home or business location. And a limited partnership may be served upon the general partner at their home or business address.

Finding The Defendants

One of the first places to look for a defendant's address is the phone book, which may have a listing of their phone number and their address. Many cities also produce directories of businesses which can contain helpful address information. Another helpful source are local process servers. These are individuals who make a living delivering papers for the Court. Often they are familiar with individuals who are habitually in trouble and may be able to locate them for you. In addition, there are professional "skip tracers" who for a fee will assist you in finding a defendant. Finally, each Court keeps track of many of the individuals who have come before it. As a result, if an individual has previously appeared in Court, the Court may have a record of their address.

Completing The Small Claims Affidavit

The next step is to visit the Court and complete a small claims affidavit form. This form includes your name as plaintiff, the names of the defendants with their addresses, the dollar amount you are requesting, and a brief summary of why you believe the defendant owes you money. It is important that this summary be as clear and concise as possible. When the judge reviews the file prior to the hearing, it will help him understand the type of case he will be hearing and will allow him to do some research on the law if he feels it is appropriate prior to hearing your case. Your credibility with the judge is also enhanced if your summary is clear, concise, and legible.

Once the affidavit is completed and signed by you, the clerk will forward it to a constable for service. However, if the defendant lives outside of the county in which he or she is being sued, you will have to hire someone from that county to serve the process. The Court clerk can assist you with this.

When Do I Go To Court?

After you have completed the small claims affidavit and paid your filing fees, the Court clerk will enter a date on the affidavit when you hearing is to be held. Record this date so that you will not miss your hearing. You should understand, that this date is tentative and is dependant upon the constable serving a copy of the small claims affidavit upon the defendants at least 3 days prior to the hearing. If the constable is not able to serve the defendant, the Court will schedule a new hearing date for you. If you have any questions regarding this procedure you should talk to the Court clerk or the constable who is serving your process.

Counterclaims

Sometimes the individual which you sue, believes that they have a claim against you. If they wish to assert that claim, they may file a counterclaim in Small Claims Court. The counterclaim is heard at the same time your claim is heard.

Can I Change The Date Of My Hearing?

Some Small Claims Courts will allow you to continue a hearing if it becomes impossible for one of the parties to attend at the regularly scheduled time. If you wish to continue a small claims matter you must contact the Court immediately so that proper arrangements may be made. In addition, it may be the necessary to obtain the consent of the other party to change the date.

Preparing For Trial

If you wish to be successful in Small Claims Court, it is necessary that you be adequately prepared. You should begin this preparation by first making a rough outline of your case. You should list on a piece of paper along the left hand margin each of the critical legal and factual elements of your case. Then to the right of each issue you should list all of the facts, documents, or other evidence which may exist supporting your claim. Next you should also list each of the items that you are aware of which tend to disprove your claim. Fourth, you should gather together all of the written documents, photographs, or other tangible physical evidence which supports your claim. Fifth, you need to contact each individual who has information that may be helpful to your claim, to insure that they will be available on the date of you trial. While the rules of legal evidence are relaxed in Small Claims Court, the judge will still follow certain basic rules. This means that you cannot testify about what another person saw, heard, or said and that the judge will ignore affidavits from witnesses. The individual who has information helpful to your case, must be in Court so that the judge and the opposing party can ask them questions.

The next step is to outline your case in chronological order. Judges like to hear about the sequence of events that gave rise to your claims in the order in which they happened. This is because that order can have legal significance as to whether you win or lose. As you prepare your outline, you should carefully note as to each separate fact or event, the evidence or testimony which will prove that event. The judge will often let you "proffer" your testimony at the beginning of your case. This means that you can offer the judge a brief summary and while giving the summary, indicate the evidence which you have on each point. This allows you to summarize your case quickly (making the judge happy because it saves him time). The judge can then directly question your witnesses or examine your documents without going through the lengthy process of identifying exhibits and getting information from witnesses through lengthy questioning. (The judge also appreciates this because it saves a lot of time and allows him to get quickly to the legally significant matters).

The final step, is to make copies of your summary and documents for the Court and for the other party. As you are presenting your case, if you refer to a document, the judge will often ask if you have given the other side an opportunity to view that document. If you hand the Court and the other party a copy of all of your materials at the beginning of your presentation, this saves time, and lets the judge know that the other party has access to the information. This is important, because each side will have an opportunity to offer rebuttal to anything that is said.

How Do I Dress For Court?

You should dress for the Court as if going to an important job or business interview. It is important when you appear before the judge to be credible. One of the decisions a judge has to make in a case where there is a dispute as to the facts, is who is telling him the truth. Often that determination is made based upon how you look and how you act. If you look sloppy, unkept, or dirty, the Court may doubt your credibility. In addition, if you are loud, abusive, use profanity, are vulgar, uncontrolled in your behavior, or interrupt the other party, the judge may form an impression that you are not telling the truth.

Trial Procedures

Each judge handles his cases a little differently. However, the general rules are the same. The judge will first call the hearing to order and go through the Court calender to identify the status of each case. As each case is called, the judge will ask the parties present to identify themselves. If the defendant does not appear, the judge will generally ask you (the plaintiff) to come up and immediately provide him with information regarding your case. Assuming that you have proper documentation on your matter, the judge will grant judgment on your behalf without the necessity of going through the entire process of receiving evidence.

If both parties are present, the Court will inquire of the defendant whether they are objecting to the relief you are requesting. If there is no objection, the judge will enter judgment on your behalf but may ask to review any documents you may have prior to entering that judgment.

If the defendant is objecting to what you are requesting, the Court will ask you to be seated and wait while he goes through the rest of the calendar to determine if there are any other matters that might be summarily disposed of. Once the judge has reached the end of the calendar, he will recall in order each of the contested cases. When your case is called you will come forward and as plaintiff will generally be instructed to present your case first.

In presenting your case, you should do so in chronological order making simple statements in a clear strong voice. At the beginning of your presentation, you should ask the judge for permission to approach the bench to give him copies of your documents. At the same time as you do that, you should provide the defendants with copies. Then you should return and finish summarizing your case.

The judge will typically ask a few questions at this point to clarify things you may have said or to ask pertinent questions. Then the judge will allow the opposing party a chance to present their case.

Many small claims judges will then allow each party the opportunity to question the other or their witnesses if it is deemed appropriate. Those small claims judges who wish to have their matters handled more formally may actually request that the witnesses be placed upon the stand and questioned. If you call a witness once you've finished asking your questions, the other side is entitled to ask rebuttal questions. It is very important when asking questions of a witness not to lead the witness. In other words not to suggest the answer you want. It is preferable that you ask yes or no questions or simply to ask them to explain what they understand of the situation. Once you have finished asking questions of your witness, the opposing side has the same opportunity.

After hearing both sides of the dispute and asking any pertinent questions which he may have, the judge will then typically ask either side if they have any final comments they wish to make. These comments should be brief, to the point, and related to items that you either believe the judge did not fully understand or that you have not responded to from the other side. Then the judge will enter his ruling.

The Judgment

The Court will enter on the record the judgment made by the judge. You and the defendants will be provided with copies of that judgment. The defendants then have a short time (usually 10 days) in which to appeal the judgment if they disagree with the judge's ruling. This appeal goes directly to the District Court, and is handled as a "de novo" case.

What Is A De Novo Case?

When a Court hears a case de novo, it means that you start again from the beginning. This means that the new judge will not listen to the tape of your small claims hearing, and will start from scratch. It will be necessary for you to obtain an attorney to represent you before the District Court if the case is appealed. Of course, so will the other party, who must also pay the filing fees to District Court.