Plaintiffs and Defendants...Making the Best of Your Day in Court
While you're waiting for your hearing date, prepare your case or defense as thoroughly as you can. Double-check your facts. Ask important witnesses to attend the hearing, gather any evidence you think you may need, and decide what you'll say to the judge.
Organize your thoughts and evidence to make your claim as easy as possible to understand. Consider preparing a written outline of the important facts and the points you intend to make to the judge. Try to think of the questions the judge might ask and of any available evidence that supports your answers and that you might bring to court. Also try to think about what the other party is likely to say and about what evidence he or she may bring to court.
By thinking ahead, you'll be in a better position to present your case. Remember that judges are under pressure to process cases quickly and that you can help yourself by being well prepared. It's also a good idea to sit through a small claims court session before the date of the hearing. This will give you firsthand information about how small claims cases are heard in your local court.
On the day of your hearing, schedule enough time to get to the court, allowing for possible transportation or parking delays. Try to arrive early so you can find the proper courtroom. Then relax, listen for announcements, and think about your case. A list of the day's small claims court cases, called a "court calendar," is usually posted outside the courtroom. If you don't find your name or case listed on the court calendar, check with the small claims clerk.
Settling Your Case Before the
Hearing
For most people, a dispute, especially a lawsuit, is very stressful. Be reasonable in your demands to the other party. Keep the lines of communication open. Always leave room for possible compromise and settlement with the other party. Even on the day of your hearing, it's not too late to settle your dispute.
If you resolve the problem, it's best to put your settlement agreement in writing. If possible, the agreement should be signed and dated by both of you. The written agreement should describe the arrangements for making payments. If periodic payments will be made, the agreement should indicate the amount of each payment, the date each payment is due, and the consequences of any late payments.
If the parties settle the dispute before the hearing date, the plaintiff can file a Request for Dismissal with the small claims court. Before doing this, however, the plaintiff has the right to receive full payment of the agreed amount in cash. If it is paid by check, the plaintiff is entitled to wait until the check clears before filing the Request for Dismissal.
If the dispute is settled
on the day of the hearing, there may not be enough time to dismiss the
case. In that event, both of you should attend the hearing and tell the
judge that you have settled the dispute. The judge may (1) dismiss the
case without prejudice, (2) postpone the hearing for a short period to
enable the defendant to pay the claim, or (3) include the settlement
agreement as part of a regular court judgment. If the agreement calls for
payment by periodic installments, and the case is dismissed without
prejudice, no judgment will appear on the defendant's credit report. If
the defendant violates the agreement, such as by missing payments, the
plaintiff may refile the case and submit the agreement as evidence that
the plaintiff has agreed to pay the amount set forth in the agreement. In
most cases, the plaintiff need not prove the original basis for the amount
being owed but can rely on the agreement to prove the amount that is
owed.
Gathering Your Documents
Gather any evidence that will help the judge understand the case. Your evidence may include any written contract, receipt, letters, written estimates, repair orders, photographs, canceled checks, account books, advertisements, warranties, service contracts, or other documents. Whenever possible, bring originals rather than copies of documents. In property damage cases, some courts ask the plaintiff to provide two or three repair cost estimates to show the reasonableness of the claim. Make a map, diagram, or drawing if it will help you explain your case more easily and quickly.
Make two copies of any document you intend to give the judge. The judge may ask you to give one copy to the other party and may place one copy in the court's file. The court will usually allow you to keep your original.
In small claims court, judges take an active role and ask any questions that will enable them to understand the case. Small claims judges can also consider information and evidence that would not be permitted in other courts. Therefore, don't hesitate to bring any items or documents that you believe may help the judge understand the case.
Arranging for Witnesses
In most small claims cases, you or the other party can easily provide all the information and documents the judge will need to understand and decide the dispute.
Sometimes, however, you'll need information that can be provided only by a witness. If you believe this information is essential to your case or defense, you should make a special effort to have the witness attend the hearing.
If a witness can't attend the hearing, you can ask the witness to write and sign a statement called a "declaration" for submission to the court. This statement should include everything the witness would like to tell the judge about your case or defense. At the end of the statement, the witness should write, "I declare under penalty of perjury under the laws of the State of California that the above is true and correct." The witness should also date and sign the statement and write his or her city and telephone number at the time of signing. If the witness isn't living in California, the statement should be signed before a notary public. The witness should also include a phone number in case the judge needs to call the witness. (The judge isn't required to accept a written statement, so it's best to have an important witness come to the hearing.)
You also may want to
consult with the small claims clerk or small claims advisor about whether
the court will allow your witness to testify by telephone. Some small
claims judges will allow a witness, especially one who lives at a long
distance or who will not be available for the hearing, to testify by
telephone. It's a good idea to present a letter to the court from the
witness explaining why the witness can't appear in person at the hearing.
If the court permits telephone testimony from witnesses, you should ask
for permission from the court in advance of the hearing.
Always talk to a witness
before the hearing. The witness may not see or interpret the facts the
same way you do or may have forgotten the key points. Also, if the witness
is hostile to you, he or she may do you more harm than good.
If your case involves a
technical issue, such as the reason that a car or TV isn't operating
properly, you may need to consult an expert. You can arrange for the
expert to attend the hearing as a witness, or you can ask the expert to
prepare and sign a written statement (declaration). The judge also can
appoint or consult with an expert. You probably won't be reimbursed for
expert witness fees, but you still might want to hire an expert at your
own expense.
If your witness won't
voluntarily come to court or won't provide some documents you need, you
can subpoena the witness. A form called a Civil Subpoena is a court
order that requires a person to come to court.
It's not a good idea to
force somebody to testify on your behalf, since this person probably won't
make a good witness or may even testify against you. However, a subpoena
may be needed to enable a witness to obtain permission from his or her
employer to be absent from work to testify in court.
You can obtain a Small Claims
Subpoena from the clerk of the small claims court or in some counties from
the small claims advisor. After you have completed the Small Claims
Subpoena, it is issued by the clerk of the court and is a court order. You
then need to serve a copy of the Small Claims Subpoena on the witness.
Unlike the Plaintiff's Claim and Order to Defendant form, you or anybody
else can lawfully deliver a copy of the subpoena to the witness. After
giving the witness a copy of the subpoena, the original subpoena must be
returned to the court with the completed Proof of Service on the
back.
A witness can ask for fees of
$35 per day plus 20 cents per mile each way. Witness fees for law
enforcement officers and government employees are higher. If a witness
asks for fees, the witness need not appear unless the required fees are
paid to and received by the witness. The person who serves the subpoena
should be prepared to pay the fees at the time of service in the event
that fees are requested. If the witness doesn't ask for fees, you don't
have to offer them.
If you'd like the witness
to bring documents to the hearing, you'll need to check the box requesting
the witness to do so. You'll have to fill out the declaration form,
describing exactly which documents or papers you need and the reasons you
need them to support your claim. Both the Small Claims Subpoena and a copy
of the declaration form must be served on the witness. The Small Claims
Subpoena gives you two options: You can require the witness to bring the
documents and testify or merely to deliver the documents you requested to
the court. (You need not require the witness to appear at the
hearing.)
After the subpoena is served,
the original (with the completed Proof of Service on the back of the form)
must be filed with the small claims court clerk before the hearing
date.
Hearings Before Temporary Judges
Most courts use temporary judges (sometimes called pro tem judges) to hear small claims cases. A temporary judge is an attorney who has been licensed for a minimum of five years to practice law in California and who volunteers to assist the court by hearing certain cases. The temporary judge is required to take a training program before hearing cases.
On the day of the hearing, you may be asked to consent, or stipulate, that a temporary judge (rather than a regular judge or a court commissioner) can hear and decide your case. Before a case may be heard by a temporary judge, all parties who appear at the hearing must give their consent. Some courts require the parties to sign a written consent form. If either party doesn't consent, the clerk probably will reschedule the hearing to a later date when a regular judge or court commissioner is available.
If you're given the option of a hearing by a temporary judge, you should consider several factors:
- Many small claims court calendars are overcrowded, so it's possible that your hearing will be held on the scheduled date only if the hearing is conducted by a temporary judge.
- Attorneys who serve as temporary judges have basic knowledge about consumer law.
- All courts must provide special training programs for their temporary judges.
Presenting Your Case or Defense
Before the hearing, the courtroom procedures are explained either by the judge or some other court officer. Many courtrooms now use videotapes to explain these procedures. The court will then call roll to see which plaintiffs and defendants are present for their hearings. Listen carefully so that you'll know what to do. Everyone who will participate in the hearings will be asked to take an oath promising to tell the truth.
The court will then hear each case. Usually, the cases in which the defendant isn't present - called "default cases" - are heard first. As you listen to the other cases, you'll learn more about how to present your own case or defense. Cases are not always called in the order listed on the court calendar, so be sure to stay in the courtroom.
When the judge is ready to hear your case, the clerk will call the names of all plaintiffs and defendants in the case. You, the other parties, and any witnesses should then go forward to the table in front of the judge. Judges usually ask the plaintiff to tell his or her side first, and then the defendant may speak. Some judges may begin the hearing by asking questions of each party to learn more about the facts or to cover areas the judge knows are important.
Usually, you'll have only a few minutes to explain your side of the dispute or answer questions, so be sure to present your most important points first. You can usually use a written outline or notes, but you should try not to read a prepared statement. Be sure to have all your evidence and any important documents with you. Tell the judge that you have them, and ask the clerk or other court officer to give them to the judge. If the judge needs to keep your evidence for review, ask how and when you'll get the items back.
Telling your story to a
judge isn't like telling a story to a friend. When you tell a story to a
friend, you usually start from the beginning, giving all details, build
some suspense, and then finish with an ending. In court, you want to place
in the mind of the judge the primary issue or issues of your
case.
Many judges will ask for a
short overview of the case. In an auto accident case, if the defendant has
admitted that the accident was his or her fault, tell that to the judge,
and say that the issue is the amount of damages and not liability. In a
contractor case, the plaintiff might say, "Your Honor, I am suing the
defendant roofing contractor for $1,000 because he performed defective
work on my roof, and it cost me $1,000 to get it done right." In an auto
repair case, the plaintiff might say, "Your Honor, I am suing the
defendant auto mechanic for $600 because he didn't fix a number of things
on my car for which he charged me, and I have a report from the Bureau of
Automotive Repair that explains what he did wrong." By giving this
overview, you give the judge guidance on what facts to focus on. However,
if you start out your auto accident case in a narrative style, the judge
won't learn about the issues of your case until later.
Some judges may investigate the case after learning relevant information. For example, a judge might ask the Bureau of Automotive Repair to investigate allegations from a consumer that an auto repair shop had performed fraudulent work. Some judges will consult with contractors whom they know and trust to obtain advice in a case involving another contractor. If your case involves shoddy work by an auto paint shop, you may want to bring your car to the courthouse parking lot and ask the judge to look at your car. A judge might visit the location where an auto accident occurred. However, it's up to the judge to determine if an investigation is appropriate.
Be brief in making your points. Do your best to be objective and unemotional. The judge will be interested only in hearing the facts about your dispute. Don't raise your voice or make insulting remarks about the other party or any witness, no matter how angry you are. During the hearing, speak to the judge and not to the other party. Most important, be truthful in everything you say.
Answer the judge's questions thoughtfully. If you don't understand the question, politely ask the judge to explain the question or ask it in another way. Remember, too, that the judge is trying to apply laws that you might not know about; therefore, don't get angry if the questions are on points you don't consider important. The judge's questions may be of great importance to your case.
Since the law requires that any award of money be "reasonable" in amount, the judge will want to know exactly how the plaintiff decided on the amount claimed. A plaintiff must be ready to explain how this figure was determined. If interest is also claimed, the plaintiff should be prepared to show how it was calculated. It is beneficial to provide the judge with a written calculation of your damages.
If the defendant believes that the amount claimed by the plaintiff is excessive or improper, the defendant should be ready to explain why this might be so. If the defendant knows that all or any part of the amount claimed is owed to the plaintiff, it's okay to tell the judge that, too. The judge may agree about the amount that is owed, or the judge may authorize an installment payment plan that the defendant can afford.
While the judge is asking the other party to explain his or her side of the dispute, don't argue or interrupt, even if you feel that what's being said isn't truthful or accurate. Make a note to yourself as a reminder. The judge will usually give you time to reply.
Asking for Your Court Costs
At the hearing, you should ask the judge to award your costs if you win. Most judges award court costs routinely to the winning party, but you should still ask the judge for them at the hearing. Costs are out-of-pocket fees and charges a party pays to file and present a lawsuit. If you're awarded costs, the award is included in the judgment against the losing party. If neither party is the "losing party," the judgment might not include court costs.
Be sure to keep receipts for your filing fees and other out-of-pocket costs. Only some kinds of costs can be recovered from the losing party. Costs that may be recovered include amounts you have paid for filing fees, service of process fees (if reasonable), witness fees (but generally not for expert witnesses), and fees for service of subpoenas (of witnesses or documents). Other kinds of out-of-pocket expenses may be awarded at the judge's discretion, so you should bring your receipts to the hearing.
