Taking the Intimidation out of Preparing for Small Claims Court
Usually people do not hire lawyers for representation in Small Claims Court – they represent themselves. Preparing for your trial can be intimidating. I have recently consulted with clients to tackle preparation for their Small Claims Court trial. You want to be ready to go to bat for your cause. This article will help with strategies to prepare for your case in Small Claims Court, so that you can advantageously take on the other side and set yourself up for the best chance to win.
Why You Are Entitled to Prevail
In every legal dispute, there are at least two stories about what led up to the dispute. It is your job to think hard about how to present your story to the Court. You need to present your case in a way that makes the Magistrate understand why you are entitled to prevail. Remember that the Magistrate has very little information about your legal dispute before your trial begins. When you begin your presentation, give the Magistrate an overview of the legal dispute and a summary of the evidence and testimony that you will present to the Court and how it supports your case.
Organization is Everything
Determine the simplest, clearest way to explain your case. The Magistrate will only have a short time to hear your side of the case, so plan accordingly. Make notes on the sequence of events so that you can refer to it, as needed. You should make an outline of everything you want to cover. Use clear headings in case the Magistrate interrupts you and wants to hear about a specific issue in the middle of your presentation. Do not read directly from the outline; use it as a guide. Start with the most important information, and end with the least important information, in case your time gets cut short. At the end of your presentation, you can tell the Magistrate that you need a minute to review your outline to make sure you covered everything. Make sure to talk about only what is relevant to the case that is being argued at your trial. An attorney can help you understand what facts are relevant in your case.
You will need to be organized with applicable statutes, case law, and pleadings. Print out the statutes (and any case law) that relates to your case and bring them with you to Court. You can find free Colorado Statutes Annotated (with general case law) on the Michie website. You may need an attorney to help with more specific case law research. Do not waste your Court time reading the statutes to the Magistrate because he or she is most likely familiar with the statute. Print out copies of the Court pleadings, such as the Complaint, Response, Counterclaim, and any other documents filed with the Court.
Be Polite While Ripping Into Your Opposition
Throughout your case, you will want to expose the other side’s bad behavior. While exposing the other side, you need to be business-like and respectful to the other side. Be mindful that your actions are being observed by the Magistrate and other people even when you are not “on the record.” Do not be rude to anyone from the second you step foot in the courthouse.
Tell the Truth, but Do not Say More than Necessary
When you are testifying, tell the truth, but do not emphasize any weak links that may be present in your case when you are giving your presentation. It is the other side’s job to accentuate any negative aspects of your case. However, if the Magistrate or opposing side asks you a question and you know the answer will be detrimental for your side of the case, don’t beat around the bush — just answer the question.
Your Public Speaking Debut
Be ready to speak in public when you give your presentation. Be mentally prepared that other people will be watching you. There will most likely be several other people in the courtroom that have nothing to do with your case in addition to your witnesses, the clerk, the Magistrate, and the opposing party and his or her entourage. There may be a crying infant, ringing cell phone, the Magistrate may interrupt you in the middle of your presentation, etc. Be ready for distractions. But don’t be the one to cause the distractions – leave your cell phone in the car and your child at daycare. Be aware that the Plaintiff will present his or her side of the story first and then the Defendant will present his or her side of the case second.
Practice Makes Progress
Practice your presentation on your dog and neighbor. Ask your neighbor if the information you are presenting makes sense, or if there are parts of your presentation that are unclear. Your story is your life so it is hard for you to realize what parts of the story are missing until someone else is listening and giving you direction. If there are parts that are unclear, add additional facts until the story makes sense to a stranger that has not ever heard about your legal dispute.
Do not Have Temper Tantrums
You need to be mentally prepared to hear the other side’s story. This is very difficult for some people. When you are listening to the other side presenting their side of the case, refrain from jumping up and down, having outbursts, storming out of the courtroom, throwing your water, etc. These types of behaviors are unacceptable and the Magistrate will not be impressed. You need to remain calm, even if you are emotional about the situation.
The Other Side Is Lying!!! What Do I Do?
Many times, outbursts and interruptions occur when a party just can’t take it when they hear the other party lying during testimony. Even if this happens, keep your cool and think about how you will uncover the other side’s misrepresentations. Be smart and direct when you expose the other side through your own evidence. This also shows that the other side is not credible. You can point out the other side’s credibility to the Court and the Magistrate can use that information when deciding who prevails. Take notes while the other side is talking so that you can be prepared with how you want to respond when it is your turn to speak.
Be Prepared to Think on Your Feet
You need to prepare to think on your feet. You will likely have to answer questions from the Magistrate and the other side. Be ready for questions that you think may come up. When the other side is asking you a question, keep it simple – there are usually four answers: “yes,” “no,” “I don’t know,” or “I don’t understand the question.” You should try to anticipate what questions will be asked of you by understanding the other party’s position. Many times, the Complaint, Response, and correspondence between the parties provide a lot of clues as to what the other side’s position will be in Court. You should come up with a list of leading questions you want to ask the other side in advance of Court, and then add to it as needed, depending on how he or she testifies in Court.
You will need to gather all of the evidence that supports the points you are trying to prove in Court. This includes things like letters, emails, and text messages, contracts, pictures, invoices, earning statements, receipts spreadsheets, audio or video recordings, and other documents or objects that support your position. You should make four copies of every document and have them organized with tabs in binders so that you, the Magistrate, the opposing side, and a witness can easily refer to the exhibit you are discussing. You should label the exhibits. Use numbers to label the exhibits if you are the Plaintiff and use letters if you are the Defendant.
You need to interview any witnesses that may be able to testify for your side of the case and plan out how your witnesses will help you at Court. Find out what each witness can testify to relating to issues in your case. Make sure the witnesses are available to appear in person on the day of trial or file a motion for telephone testimony with the Court. If there are multiple available witnesses that will testify about the same information, chose the best witness to testify about that particular issue for you.
A witness must testify to his or her own personal knowledge or observation of facts. A witness generally may not testify in court regarding things observed or said by someone else because it is “hearsay.” Hearsay is an out of court statement which was made out of court by someone other than the person who is on the witness stand testifying – offered in court by the person who is testifying to prove the truth of the matter asserted. As a general rule, hearsay evidence is not admissible in court. There are some exceptions, which can be discussed with your attorney. Come up with a set of questions to ask that witness at Court. Go over the questions with your witness so he or she knows what to expect. Based on the expected answers, you may want to modify or add to the questions that you plan to ask.
The Wheels of Justice Grind Slowly
You may have to wait a long time before your case is called to trial. Bring something to read in case you have to wait a long time. Other cases may be called to trial ahead of yours and (if that is the case) you should be listening and learning as much as you can from those trials. You may find out what kind of mood the Magistrate is in, you may find out how a particular Magistrate is ruling on certain issues on that particular day, and you will be able to see the process of how Small Claims Court trials operate. This should information should be used to your advantage. It is a good idea to go to Court before your trial and observe another Small Claims Court trial. It will give you a good idea of what you can anticipate.
Do Not Ignore Paperwork from the Court
Read ALL of the papers that the Court gives you as soon as you receive them. Make sure you understand everything in the paperwork or ask your attorney if you do not understand. A lot of people do not bother to read or understand the paperwork provided by the Court. It usually contains deadlines, case management orders, and very useful information about the process that will be implemented for your trial.
Be Early to Avoid the Other Side’s Default Win
Do not be on time – be early. Remember that you need time to find parking, deal with lines to get through security, etc. If you are late, it can mean that you lose your case by default. If the Plaintiff appears on time, but the Defendant does not appear on time, the Magistrate can enter a default, meaning the Defendant loses, without an opportunity to be heard, and the Plaintiff wins everything he or she asked for in the Complaint. If the Defendant appears on time, but the Plaintiff does not appear on time, the Magistrate can enter a default or dismissal with prejudice, meaning the Defendant wins and the Plaintiff will not have a chance to bring that claim again in the future. If a dismissal or default is entered, there are certain situations where the losing party can file a motion asking the Magistrate set aside the judgment or dismissal, but these motions are not usually granted.
Hiring an Attorney
Either party can hire an attorney for consultation purposes. Hiring an attorney on an “as needed” consultation basis can be helpful to obtain legal advice on the controlling law and how the facts are applied to the law in your particular case. Your consultation attorney can also help you prepare for your trial in a way that is tailored to your particular needs. This is usually more economical because you can choose the work that you want to do, and you can choose the work that you want your attorney to do. For example, you may be comfortable preparing the exhibits, but you may want assistance with developing the line of questioning for your witnesses.
If you want to hire an attorney to represent you at Court as your attorney “of record,” there are special rules in Small Claims Court. If you are the Defendant in a case in Small Claims Court, it is your sole option to hire an attorney to represent you. In that case, you must file a notice that you will be hiring an attorney at least 7 days prior to the trial. If you are the Plaintiff, you can only hire an attorney to represent you at trial if the Defendant hires an attorney for representation.
Hopefully, this information was helpful in taking the intimidation out of getting ready to prepare for your Small Claims Court trial.
For additional information and if you have questions, please contact Gregg Greenstein.