INTELLECTUAL PROPERTY AND TRANSACTIONAL LAW CLINIC

PLAINTIFF’S SMALL CLAIMS CHECKLIST

 Determine what it is that you believe is owed to you, what it is you want and what your expectations are.

Early organization is important. You must first determine exactly what it is that you want and whether you can prove that the defendant owes it to you. Begin to compile and arrange all of the evidence that you have.

Determine whether the time and effort it takes to sue someone in small claims court is actually worth the cost and effort. It is easy to forget to take into account the time it takes to prepare the filing documents, prepare the case, and the cost of taking time during the work week to appear in court.

 Write and send a demand letter to the defendant.

It is not mandatory under Virginia law that you write a demand letter to the other party before filing suit, however there are benefits to doing this. The first reason to write a demand letter is that it shows the other party you are serious. A letter may lead to payment and you can avoid a lawsuit. Additionally, a demand letter serves as evidence of your willingness to try to settle the matter outside of court.

The letter should include: why the other party owes you money or property, how much or what they owe, a demand for what is owed, copies of proof (contracts, pictures or the like) and a summary of any events surrounding the debt that may be important.

You should also include a reasonable deadline for a response to the letter, payment of the debt, or return of property. This should be between ten (10) and fourteen (14) days. In closing you should include a warning that you will take legal action if the matter is not resolved. It is important that you present yourself in a reasonable light, stick to the facts and do not make any threats beyond that of litigation.

Make and keep a copy of the letter and mail the original by certified mail to the defendant and also send a copy of the letter by return mail. Keep the certified receipt with the copy of the letter.

 Find the defendant & determine where to sue.

If suing an individual in Virginia, you will need to sue the defendant in the city or county in which they live or work. You must find the address of the defendant’s home and phone number. Alternatively you may find the address where the person works.

Once you have the address, you can determine the court to file suit against the defendant. This is known as the proper “venue” for the lawsuit. A full list of Virginia District courts may be found at: http://www.courts.state.va.us/courts/gd.html.

 Obtain a warrant in debt or warrant in detinue form and fill it.

Forms and instructions for completion may be obtained from the district court clerk’s office located at the courthouse or from the Virginia courts system website at: http://www.courts.state.va.us/forms/district/civil.html.

 File your claim with the small claims division of the district court and pay appropriate filing fees.

Fees may be paid by cash, certified check, or money order. The Virginia Courts system website has a calculator to help you determine fees prior to going to the court to file. The calculator may be located by clicking on “Civil Filing Fee Calculation” at: http://www.courts.state.va.us/caseinfo/home.html.

 Serve a copy of the civil warrant on the defendant.

Service of the warrant must be performed by a proper individual. The plaintiff may not properly serve the civil warrant. You may have a copy of the civil warrant served by the Sheriff’s office by paying an additional fee at the time (or when) you file the civil warrant. In most Virginia jurisdictions the fee is $12.00. Alternatively you may hire a private process server to serve the civil warrant on the defendant. Private service is usually more expensive than service by the Sheriff’s office.

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While it will not satisfy service requirements, it is recommended that a courtesy copy of the civil warrant be sent to the defendant via first class mail and a “certificate of mailing” be filled out and either returned to the clerk’s office or given to the judge on the trial day. By doing so, the plaintiff may obtain a judgment on the trial date if the defendant does not show on that day. Otherwise the judge will not hear the case until the notice requirements have been met.

 Subpoena any witnesses.

To subpoena a witness, you must file a Request for Witness Subpoena in the small claims division of the district court clerk’s office at least ten days before the trial. This form may be obtained at the clerk’s office or found online at: http://www.courts.state.va.us/ forms/district/dc325.pdf.

It is wise to subpoena all witnesses, even those who are appearing on your behalf. This is to create a record that you intend to call the witness, which will allow a continuance of the case if the witness does not appear. You should let your witness(es) know that you are subpoenaing them ahead of time so they are not caught off guard when they receive the subpoena.

 Prepare your case.

It is normal to be nervous when appearing in court. One of the best ways to combat that nervousness is to be as prepared as you possibly can. If time permits, it may be helpful visit a small claims hearing beforehand to familiarize yourself with the atmosphere and procedures.

 Determine the main issues of your case and write them out.  Prepare a summary of those issues in more detail. Tell a story.  Organize your evidence and prepare your testimony.  Arrange evidence in such a way that you will be able to quickly retrieve it at trial.  Mark each piece of evidence in a systematic manner, i.e. 1,2,3, for ease of reference and presentation to the court.  Make two additional copies of each piece of evidence; one for the judge, the second for the defendant.  If there are important sections of documents, make an additional copy and highlight those sections to make them easier to find if need be.  Practice presenting your case and explaining any evidence you plan to present.

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 Try to put yourself in the defendant’s shoes and anticipate what excuses they may have. Develop reasons why they are wrong and be prepared to explain when they are done presenting their side.

 Go to court on the trial day.

Small claims court is informal, with regard to procedural matters. It is important however, to show the court the same respect as any other proceeding. Show everyone in the courtroom respect including the judge, sheriff, and clerk. You must not speak to the defendant at any time while you are in the courtroom.

Dress appropriately for court. By dressing professionally you will be taken more seriously. No shorts, blue jeans t-shirts or hats.

You will not allowed to bring a cellular phone into the courthouse for any reason.

It is important to arrive at the court house early. This will allow you time to find the courtroom and get settled before the hearing. Generally you must check in with the clerk of court to let them know you are present. Failure to do so before the first case is called may result in a judgment in the defendant’s favor. The first case will be called shortly after everyone checks in. It is important to remain silent while other cases are heard by the judge and wait for your turn.

 Present your case in court.

When it is your turn, you will be called to the stand by the clerk and be asked to swear an oath to tell the truth. The judge will ask what you want, why you want it and whether you have proof that the defendant owes it to you. The plaintiff has the burden of proof which means that it is the plaintiff’s responsibility to prove that something is owed, not the defendant’s responsibility to prove something is not owed.

Present any relevant evidence or witnesses you may have. Try to be brief and stick to the issue you want the judge to decide. Personal attacks or accusations beyond the subject matter of the lawsuit for will only distract the judge from what is important. Be sure to only address the judge and not the defendant. If the judge asks questions, answer them directly.

The defendant will then be given an opportunity to present his or her case. The defendant will be allowed to offer any evidence and call witnesses. It is important that the plaintiff allow the defendant to speak their piece and not interrupt for any reason. When the defendant has finished the judge will allow the plaintiff to answer any evidence witnesses, or other issues raised by the defendant.

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After the plaintiff and defendant have presented their respective cases, the judge will enter a judgment for the plaintiff or defendant. The judge is not required to explain the decision or issue a written opinion. The judge may or may not issue a decision on the day of the trial depending on the complexity of the case.

If the defendant is not in court on the trial day, the judge may enter a default judgment in the plaintiff’s favor.

 Collect on the judgment or Appeal.

A judgment is a judicial recognition that the plaintiff is owed a certain amount of money; it is up to the plaintiff, now the “judgment creditor,” to collect from the defendant. A judgment may be collected in one of the following ways: interrogatory summons, garnishment, actual levy, docketing of the judgment (recording), or exemplification of record. The district court clerk’s office should have information on each of these methods.

Authored by Kyle Martin, Fall 2010.

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