How to Make Use of Small Claims Court
How to Make Use of Small Claims Court
What Is Small Claims Court?
Small Claims Court handles the filing of cases that conform with the standards enacted by the Ohio General Assembly in Chapter 1925 of the Ohio Revised Code. This Ohio law requires that each county and municipal court establish a special division for lower money damage cases, generally referred to as “small claims court.” Small Claims is a division of a municipal or county court designed to provide easy court access to non-lawyers, and the cases are heard by a magistrate. The parties involved in the dispute are allowed to object to the magistrate’s decision and appeal to municipal or county court. Small Claims Court is designed to allow parties to more quickly have their day in court, without necessarily retaining an attorney.
Although the rules are more relaxed than in other court settings, small claims trials generally follow the Ohio Rules of Civil Procedure. In addition, each court has its own local rules which you will need to follow. Check with the Clerk of Courts.
What kinds of complaints are heard in small claims?
Small Claims Court in Ohio can only hear cases seeking to recover money owed. The most you can ask for is $3,000. A counterclaim (a claim filed by the opposing party against you) also cannot exceed $3,000. The court cannot hear cases for slander, libel, replevin (action for the return of specific personal property), malicious prosecution, abuse of process actions, punitive damages or other cases where more than money is pursued. Small claims court also cannot resolve claims against the agencies of the State of Ohio or against the United States government and its agencies.
Therefore, if you have a dispute involving $3,000 or less before considering interest or court costs the proper forum for the dispute is Small Claims Court. Just remember the Small Claims Court can order a judgment for money only. It cannot require a person or business to do something or to stop from doing something (i.e. it cannot issue an injunction).
Cases that initially fit the small claims criteria may be transferred out of small claims court:
- If a case starts with a claim for $3,000 or less but then comes to include claims that exceed $3,000, the case will be transferred to the civil division of municipal or county court.
- If one of the parties to a case requests it, a case may be transferred to the civil division of the municipal or county court.
Who may file a lawsuit in Small Claims Court?
Any individual 18 years of age or older or a corporate entity (such as a corporation, partnership, etc.) doing business in Ohio can sue or be sued in Small Claims Court. Each party may be represented by an attorney or may appear pro se.
If you are an officer or an employee of such an organization and are involved in a small claims court case on your organization’s behalf, you should seek the advice of an attorney before you file any document with the court. You may present evidence concerning your side in a dispute, but you may not engage in advocacy, such as questioning of witnesses in court or the presentation of arguments.
If you advocate in court on behalf of your organization, you may violate rules about the unauthorized practice of law-even if all you do is fill out forms and file papers. To avoid such a violation, contact an attorney to find out what you may and may not do on your organization’s behalf.
What is “Pro Se”
“Pro se” means “for himself” and a “pro se litigant” is an individual who appears for himself in court. When a small claims complaint is filed by an individual who represents himself, he is appearing “pro se.” The individual who files the complaint is the “plaintiff” and the individual being sued is the “defendant.” If an individual defends himself in a small claims action, he is also appearing “pro se.”
Do I need an attorney to file a lawsuit in Small Claims Court?
By law, the appearance of an attorney on behalf of any party is permitted, but not required. In fact, the goal of the small claims division is to make the court accessible to non-lawyers. Persons 18 or older may represent themselves in Small Claims Court. Keep in mind persons younger than 18 must still be represented by an attorney.
Because the amounts at stake are often less than the costs of retaining an attorney and the procedures may be less formal than in other courts, many parties elect to represent themselves. However, parties may retain attorneys to appear on their behalf and if the opposing party is represented by an attorney, it may improve your chances of winning to retain one.
What is the cost to file and where do I file?
The best strategy is to ask your local Clerk for the cost in your county. File your complaint at the Municipal or County Clerk of Court Office in the county where the defendant (the person you are suing) lives. Ask your local Clerk for the cost in your county or check the Clerk of Court website for that jurisdiction.
How do I file a lawsuit in Small Claims Court?
A small claims action is commenced by paying the clerk of the court a filing fee and filing a “summons” and “complaint.” The web site for the Clerk of Courts for the jurisdiction in which you are filing usually provides forms of complaints and summonses that can be filled out and filed. For example, in Franklin County, the Clerk has Small Claims forms at http://smallclaims.fcmcclerk.com/home/court-forms. Be sure to make enough copies of the summons and complaint to file an original, serve one on each defendant, and maintain extras for your files.
The complaint must include (1) your name, address and telephone number; (2) the name and address of the person or entity you are suing (the “defendant”); (3) the nature of your claim against the defendant, including dates and other relevant information; and (4) the amount of money damages you are claiming.
Persons filing small claims lawsuits (“plaintiffs”) should be sure to use the correct legal name of the persons or entities being sued (“defendants”). Correct entity names may be available from the Secretary of State’s Office. Similarly, if you are suing the owner of an unincorporated business operating under an assumed name such as a sole proprietorship, general partnership, or professional services corporation you can find out the name of the owner by checking the assumed name registrations. Note that the defendant’s address may be his/her place of residence, or place of business or regular employment.
If the small claim arises out of a contract or another type of document, copies of the contract or document must be attached to the original and all copies of the complaint unless the plaintiff attaches an affidavit stating that it is unavailable. Copies of other important documents, such as bills or receipts also may be attached.
Pay special attention to several points:
- When you state the amount of your claim, consider whether you want interest on any judgment and reimbursement for all court costs. If you do, be sure your complaint asks for damages, interest on your damages, and reimbursement of all court costs, including those incurred in enforcing a judgment (i.e., in getting payment from the other party). Note that Ohio law does not permit you to recover wages for time lost for preparing or filing your case or for appearing in court.
- Find out whether the defendant is on active military duty: federal law provides protection for those who are on active duty, and the court will ask about the defendant’s military status.
- The court must officially notify the defendant that he or she is being sued, and it is your responsibility to provide an address where the defendant can be reached (see below).
How much does it cost?
Each court has established a filing fee. Call the court and ask what the fee is. If you plan to subpoena a witness, ask for information about the costs required.
If you cannot afford these fees, you may file an affidavit of indigency with the court and ask that your fees be waived. Court staff can provide you with instructions for how to file such an affidavit. The court will let you know whether your affidavit was accepted. If the court is satisfied that you cannot afford these fees, you may file without fees. But if the court is not satisfied, you will need to pay the fees.
Generally, you may be able to recover all of your out-of-pocket court fees, together with interest, if you win your case. Be sure to ask for reimbursement of your court costs along with your demand for recovery of your damages and interest
How is the defendant given notice of the small claims lawsuit?
The filing fee and complaint must be accompanied by a summons. The summons must require each defendant to file in court an “appearance” on a day specified in the summons. At the time the summons and complaint are filed, you may pay the clerk a fee per defendant served plus the cost of mailing and furnish the clerk an original and one copy of the summons containing an affidavit stating the defendant’s last known mailing address, and one copy and an original of the complaint. The clerk will then mail the forms, certified mail, return receipt requested. The return receipt when delivered back to the clerk, if it shows that the summons and complaint were delivered according to state and local rules prior to the date the defendant is ordered in the summons to file an appearance in court, constitutes proof of service.
How must a defendant respond when served with a summons and complaint in a small claims lawsuit?
If you are served with a small claims complaint and you neither deny the claims nor the amount of damages the plaintiff seeks, you should contact the plaintiff and attempt to resolve the matter out of court. Otherwise, you can simply admit the claims and have a judgment entered against you. The former course is generally seen as preferable, to avoid the public record of a judgment against you.
If you dispute the claim or the amount of damages requested, you must respond to the complaint by filing an “Appearance.” The Summons will specify a “return date” and the defendant must on that day file the written Appearance and pay an appearance fee with the Clerk of Court at the address checked on the Summons. Appearance forms are generally available either at the clerk’s office or, as with complaints, online at the Clerk of Courts website.
The case will not be heard in court on the return date. When the defendant files the Appearance and pays the fee, the clerk will give notice of the first court date. It is on that day that the defendant must appear in court.
If the defendant fails to file an appearance and pay the required fee on the return date, a judgment by default may be entered for the relief requested in the complaint.
Can a defendant assert a claim against the plaintiff or anyone else?
If you are sued in small claims court and you claim that the plaintiff owes you money as a result of the same transaction or events that are raised in the complaint, you may file a “counterclaim” against the plaintiff. This is done by filing a small claims complaint and delivering it, along with the filing fee, to the clerk. A summons is not necessary for a counterclaim, but a copy must be served on the plaintiff, either by mail or by hand, with proof of service. The plaintiff’s complaint and defendant’s counterclaim will be heard at the same hearing.
If you have been sued and you believe that a third party bears some or all of the liability claimed by plaintiff, you may also file a “third party claim” against that party. This requires a small claims summons and complaint filed in the manner set forth above. You should use the same caption and case number as in the complaint against you, and simply add to the caption the fact that you are a “third party plaintiff” and that the person or entity you are suing is a “third party defendant.” The clerk should be able to assist you and answer any questions.
How will I know if the Complaint has been served on the defendant and if the defendant has appeared?
Once the defendant files the Appearance form, the defendant must send a copy to all parties named in the case (or their attorneys) either by regular mail, fax, or personal delivery. If you are a plaintiff and have not received a copy of a defendant’s Appearance form within a few days of the return date, and in no event more than a day or two before the scheduled court date, call the clerk of the court to determine whether an Appearance has been filed. Even if the defendant has missed the deadline, you should still be prepared to present your case at the date set for a court appearance in order to obtain a default judgment.
How should the parties prepare for a small claims court hearing?
In preparing your case, you should keep in mind that the goal is to present proof that is more convincing than your opposition’s. We recommend the following preparatory steps:
- Make a detailed list of what happened so the facts are clear in your mind.
- Gather all documents, notes, receipts, pictures, or other physical evidence that you need to prove your claim.
- Determine if any witnesses will be helpful to your case and, if so, ask them to appear at your trial. If they will not voluntarily appear, you may choose to “subpoena” their attendance at the trial. Subpoena forms are available either at the clerk’s office or at the Clerk’s website. Note that written statements from witnesses may not be admitted at trial. If a witness is crucial to your case, that witness must be in court.
- If you are suing on the basis of defective merchandise or faulty services, it may be helpful to have an expert witness testify on your behalf at trial. In a case where an expert might be useful, you should have the expert evaluate the facts of your case before trial, and if the expert agrees with your position, make sure he or she is available on the date of the trial.
In addition, since your court appearance will involve an oral presentation of your story, it is helpful to go through your presentation several times in advance, until you feel comfortable. It also may be useful to have someone not familiar with the facts of the dispute listen, ask questions, and then critique your presentation. This person can tell you if your explanations are sufficiently clear, forceful and convincing, and can help prepare you for difficult questions that the judge or your adversary may ask.
If you have never appeared in small claims court, you may benefit from attending court hearings in other cases as part of your preparation, just to get a sense of how the trials are conducted. The clerk’s office should be able to tell you when trials are scheduled.
Note that the usual forms of “discovery” in civil lawsuits such as depositions, written interrogatories, or requests for the production of documents are not available in small claims actions without first obtaining a court order permitting them. You should gather the necessary materials yourself, and should not expect that you will be able to obtain them from your adversary.
What is mediation?
In nearly all of the larger courts, and in many of the small courts as well, the court will make available a mediator to assist you and the other party to try to work out a settlement. The mediator is not a judge and will not decide your case or give you legal advice.
A mediation hearing is a court-supervised conference where the plaintiff and defendant are given an opportunity to discuss all aspects of their dispute and to settle it without having a formal court hearing about the legal claim. Mediation hearings are confidential. If the mediation fails and the case proceeds to a formal court hearing, the information revealed in the mediation may not be used in court.
Take full advantage of the opportunity to participate in a mediation hearing. Mediation hearings are less formal than court hearings and can consider a broader range of issues surrounding the legal claim: it may be the only chance you have to air all of your concerns, to hear the concerns of the other party, and to come to an agreement that concerns issues other than the money one party may owe another.
Through mediation, you may arrive at a solution that better suits your needs than a court-imposed judgment.
Mediation is generally available at several stages of the case: you may be able to have a court mediation hearing before you file the case, and you may be able to schedule a mediation up to and including the day of the court hearing. Some courts require you to appear at a mediation hearing. Check the local rules of your court, and ask if you are uncertain.
What if the claim is settled before the hearing?
If you have filed a small claim, and the defendant pays you an agreed upon amount to settle your claim, you should notify the court in writing. Be sure to ask the court whether you need to fill out a specific form or can write your own statement noting that your claim has been settled. Your written notice of settlement will be made part of the record and your case will then be dismissed.
Note that the court will not return any fees or other court costs that you have paid. Any settlement you agree to with the defendant should be made with consideration given to these fees.
If you have been sued, and you have made an agreement with the plaintiff that you believe settles the entire claim, ask for written confirmation from the plaintiff and for a copy of the notice of settlement as filed with the court. If you have not received a notice from the court that your case has been dismissed before the scheduled hearing date of your case, contact the court to make sure that your case has indeed been completely settled and dismissed.
What happens when the parties appear in court?
Be sure to arrive at the courthouse sufficiently early to find the correct courtroom and organize your materials. The court may have other matters scheduled at the same time, in which case you may have to sit through other proceedings waiting for your case to be called. Take this time to observe courtroom procedures and etiquette.
When your case is called, the judge will typically ask the plaintiff briefly to summarize the nature of the lawsuit and then ask the defendant if they admit or deny the allegations made and/or the amount of damages that the plaintiff is seeking. If the defendant admits liability and agrees to a damages amount, judgment will be entered for the plaintiff.
If the defendant denies the claim or disagrees with the amount of damages that the plaintiff claims to be entitled to, then the court will set the case for trial. The trial may occur immediately, or be set for later in the day or on some future date. Both parties should prepare for this initial hearing as though the trial will occur on that day. That means bringing any evidence or witnesses to the hearing and being prepared to argue your case. While the court may grant a party’s request for “continuance” to another date if that party is not ready to proceed on the hearing date, the court has the discretion to deny such a request.
One thing is clear. If you fail to attend on the date of the hearing, the court may dismiss your case (if you are the plaintiff), or enter a judgment against you (if you are the defendant). This is not something you can miss with impunity.
What happens at the trial?
The plaintiff is given the first chance to present his or her case. This means telling in an orderly fashion the plaintiff’s side of the story, including presenting any evidence and/or witnesses. When the plaintiff has finished, the defendant will then have the opportunity to present his or her side of the story, including evidence and witnesses.
The judge may choose to relax some of the formality typically associated with trials, and may ask questions of the parties or witnesses. After both sides have presented their cases, a decision will be rendered. If either party has demanded a jury (and paid the proper fee), jurors will make the decision. Otherwise, the judge will decide.
What happens if I win?
If you are the plaintiff and win the lawsuit, a “judgment” will be entered in your favor and against the defendant in the amount awarded by the judge or jury. A judgment is a document signed by the judge and given an official court stamp that states the amount you are owed. Your opponent is not obligated to pay you immediately. However, interest begins to accrue immediately at an annual rate set by statute.
Obtaining a judgment in your favor and actually collecting the amount owed from the defendant are two separate things. If after 30 days you have not been paid and the defendant has not filed a post-judgment motion or appeal (see below), you may bring what are known as “collection proceedings.” Since this area of the law is complex, you may want to retain an attorney to assist you.
If you are the defendant and you win, judgment will be entered in your favor indicating the dismissal of the claim against you. You also may seek from the court your “costs,” such as filing fees. In certain situations, attorneys’ fees are also recoverable.
What happens if I lose?
If you are the plaintiff and you lose the lawsuit, your complaint will be dismissed and you will not recover any damages. The court may also order you to pay the costs or attorney fees incurred by your adversary. If you lost because your evidence was not sufficiently convincing, then it is unlikely you will be able to raise the matter again in court. On the other hand, if you lost due to a “procedural” mistake (for example you did not properly serve the defendant), it may be possible to correct the error and seek another hearing.
If you are the defendant and you lose, a “judgment” will be entered against you in the amount awarded by the judge or jury. A judgment is a document signed by the judge and given an official court stamp that states the amount you owe the plaintiff. While you are not obligated to pay on the spot, interest begins to accrue immediately at an annual rate set by statute.
The judge may ask you to agree to a payment plan or schedule. You should be careful about this. If such a schedule is entered in a court order, then any violation of the schedule would be a violation of a court order, meaning you could be held in contempt of court.
If your financial situation makes it impossible to satisfy the judgment, you should let the judge and the plaintiff know and seek an accommodation. If you are ordered to make payments notwithstanding any hardship, you should be aware of “exemption rights,” which exclude certain property and income from judgment for persons below a certain income level. The nature of exemption rights is complex; you should seek information from consumer or legal aid organizations.
What can I do if I think the decision was wrong?
If the magistrate rules against you and you want to challenge the magistrate’s decision, you will need to do the following:
- Immediately, while standing in front of the magistrate, ask him or her to prepare a report on the decision.
- Check with the Court Clerk to find out when the report has been completed and filed.
- Within 14 days of the filing of the report, you must file an objection with the court detailing why you believe the magistrate was wrong.
- Mail a copy of your objections to the other party in the case.
- If you disagree with the magistrate’s determination as to what the facts are in your case, you must file a transcript of the proceedings with your objections. However, a transcript can be costly.
- Once filed, a municipal or county court judge will review the case along with your objections and make a ruling.
At the hearing on the motion, you should be prepared to explain why the prior decision was wrong. If the judge grants your motion, the matter may be set for another trial. If the judge denies your motion, then you may file an appeal.
If you choose to file an appeal, either directly after the trial or after an intervening motion to reconsider has been denied, you must file a notice of appeal within 30 days of the decision you are appealing from. If you filed a motion to reconsider and lost that motion, you have 30 days from the date of that decision. You may want to consult an attorney about whether to appeal and, if you choose to do so, to assist in the appeal.