HOW TO LITIGATE YOUR OWN SMALL CLAIMS CASE
Sometimes you need to go to court, but it just isn't worth the cost to hire a lawyer. Some cases are not worth enough money to justify those fees. That is why the Courts created Small Claims Court. The average person should be able to get their day in Small Claims Court without having to hire a lawyer. However, there are still many procedural hurdles to get over before you can get your case before the Judge. Therefore, we created this fact sheet to instruct people on how to successfully litigate a small claims lawsuit by themselves.
Warnings & Disclaimers: Please read this part first!
(1) This is not a comprehensive guide to litigating every small claims case. It cannot possibly be comprehensive because each case is unique, and our advice may change depending on the facts. Reading this guide gives you a basic outline of how to successfully litigate a small claim, and will help you navigate the procedural hurdles so you can get your case before the Judge. However, it is no substitute for actually retaining a lawyer to litigate your case for you.
(2) Get a consultation. Even if you use this fact sheet, we strongly recommend you at least get a consultation with an attorney in our office to go over the unique facts of your particular case, and make sure there is no special advice for your particular case. We charge $100 for a consultation with one of our attorneys. That gets you up to one hour of time. That is money well spent.
(3) We are not representing you in your particular case just because you read this article. You have not officially hired us as your attorney unless you meet with one of our attorneys and sign a written retainer. When you file a claim, there is a space to list your attorney. Do not list our law firm there if you file your own claim and plan to represent yourself.
(4) This information applies only to Maryland.
What is a Small Claim?
There is not separate court for small claims. All small claims are handled in the District Court system. However, the amount in controversy is what determines if a claim is a small claim. Small claims are handled in a less formal manner than large claims. That is what makes small claims cases easier to handle without an attorney.
The limit is $5,000. Any case you file in the District Court of Maryland for $5,000 or less is considered a small claim. Be sure you do not file your case for more than $5,000, or you will be required to conduct your case according to the formal rules of evidence. Note that the $5,000 limit does not include interest or court costs you may be requesting. You can add those on top.
This may force you to make a decision. Let's say someone owes you $5,250 and refuses to pay. Should you file for the full amount and be forced to hire an attorney? Any attorney you hire is likely to eat up way more than that extra $250. You may want to decide to keep it in small claims court, just file for $5,000, and let the extra $250 go. You can simply limit your case to $5,000, and cap your damages at that amount in order to avoid being subject to formal rules of evidence and having to hire an attorney. This is a business decision that only you can make.
Can a Corporation File a Small Claims Case Without an Attorney?
Yes. If you are the owner of a business, and want to represent your business in court, you can only do that in a small claims case. A corporation is deemed a person under the law, and is therefore a separate legal entity than the owner. That is why a corporation must usually be represented by a licensed attorney in any court action. However, an exception is made for small claims cases.
A corporation can file a small claims case on its own as long as the claim does not exceed $5,000. Also, the claim cannot be a claim that is assigned to the corporation. It must be debt that was originally owed to the corporation, not someone else.
Can I Really Litigate a Small Claims Case by Myself?
Sure! The whole point of small claims court is to let non-attorneys get their cases resolved. You do have to be an organized individual, and you do have to be the type of person who can get their point across when talking to the Judge, but it does not require special legal skills.
However, you would be smart to get a consultation to make sure the legal issues in your case are as simple as you think they are, and to make sure there aren't traps waiting for you at trial. Even a simple case may have some complexities that only a lawyer can see. But you can find them out for the cost of a simple $100 consultation.
On the other hand, if your cases is likely to be contested by the other side, or if it involves multiple witnesses, or aspects of the law that you don't fully understand, an attorney can be very helpful. A consultation with our attorneys can help you make a determination if your case is something that you can handle on your own or not.
If your case involves a breach of contract, you should always review the contract to see what it says about attorney's fees. Many contracts provide that if there is a dispute between the parties, that the prevailing party may be entitled to recover attorney's fees should the matter go to court. This could be a benefit to you, but is a potential hazard you should evaluate before you file suit. A consultation with one of our attorneys can help you with this decision.
File the Complaint: The first step in any lawsuit is to file a Complaint. A complaint is the formal document in which you make allegations that somebody else wronged you. For small claims case, you should use the District Court' s forms.
Go to the Courthouse of the jurisdiction in which you will file. You must file your case in the District Court for the County in which the Defendant lives or carries on a regular business. The staff in the office of the Clerk of the District Court will provide you with the proper form to fill out and file. There will be nominal filing fee to pay. It isn't much. As I write this, the cost is $28.00. But it is subject to change. It will not likely be a lot. You can find out on line. In fact, you may be able to find a complaint form and other necessary documents on line. Visit the District Court of Maryland at www.courts.state.md.us and poke around there.
You have to fill out some basic information, like your name and address, and the Defendant's name and address, and the basic facts. Keep the facts as basic as you can at this stage. You will have to get the Defendant's proper address in order for the complaint to be properly served on the Defendant. So get that part right. You have to list the amount you are claiming due (remember to keep it below $5,000), and you have to sign it. Signing it means you guarantee the facts in it are true and correct to the best of your knowledge. Be sure you do not embellish facts or make any claims you are not sure of. Doing that is basically lying to the court. That is a very bad idea.
At the bottom of the complaint is an affidavit. We strongly recommend you do fill this out and sign it. Many defendants do not appear to defend their lawsuit. If that happens to you, you can still get judgment if that part is filled out, and if you attached all your necessary documents. We still recommend you show up on the trial date just in case, but having that affidavit gives you options to getting a judgment if the Defendant fails to do what they are supposed to do.
If you sign the affidavit and do not show up in court, and the court finds that it has insufficient information to enter a judgment, the court will schedule your case for a hearing to obtain the additional information, from you, that it needs to enter a judgment.
The Clerk of Court will process your complaint, assign a trial date, and issue a summons to the Defendant. The summons will have your trial date, time, and location on it. Carefully note the trial date and time and location, and be sure to be there on that day and on time. If the Judge calls your case and you are not there, it will be dismissed.
A summons is what gets served on the Defendant, and is the proper legal notice to them that they have been sued, and they have to defend the charges. The summons contains a lot of information, and you should read it carefully before serving it on the Defendant. Most people don't do this, and often to their detriment.
Service of Process: This is fancy lawyer lingo for notifying the defendant of the lawsuit. You have to serve the process (the summons and supporting documents) on the Defendant in a legally acceptable way or the Court will not give you a judgment when your case is heard. They will dismiss your case. So you have to do this procedural part right, or you will never even get to tell your story to the Judge.
It is up to you to have the summons and complaint properly served on the Defendant. You must attach a copy of your complaint to each summons before service. If you file extra copies with the court at the time, the court will usually attach the complaint to the summons for you.
You have several options for service of process. The easiest way to serve a summons is get it done by the Sheriff. For a fee, the Sheriff will find and personally serve the summons on the Defendant. Or, you can hire a private process server. This is better as the private process server is usually more motivated to find the defendant. They are more expensive than the Sheriff, however.
Technically, any individual over the age of 18 who is not a party to the case can serve a summons. That means you cannot serve the summons, but your friend who is not a party to the lawsuit can. However, if you think it will lead to any confrontation then avoid getting a friend to serve the summons. It isn't worth the hassle of an assault, or criminal charges being filed, etc. A professional knows the boundaries and won't make a situation worse by doing something illegal when serving your summons.
You can also serve a summons by registered mail, restricted delivery. Mail service is often ineffective for a variety of reasons, and we do not recommend it for that reason. Mail service is the cheapest way, however. If it fails, you will have to get a new summons and serve it again. However, mail service can be very effective if you are suing a corporation. Then you are suing the corporations registered agent, and that person may sign for it since it is their job. Remember, someone other than you should deposit the summons and complaint by certified mail, return receipt requested.
Who to Serve: If your suit is against an individual, you must name that individual as a party and serve that individual with the summons. If your suit is against a corporation, you must name the corporation as a party but you must serve summons on their registered agent. Every corporation is required to have a registered agent. You can find out any corporation's registered agent by calling the State Department of Assessments and Taxation at 1-888-246-5941, or looking on line for business entity information at www.dat.state.md.us. They will give you the name and address of the registered agent. If the business is not incorporated, sue the business and the individual owner, but serve the owner. If suing an unincorporated business, remember to serve the owner with summons and copies of your complaint for both the business and the person.
Proof of Service: You must file your proof of service with the Court. The proof of service is on the summons. Fill it out and file it with the Clerk. Normally, the Court gives you 3 copies of the summons. Retain one for your records, one to fill out the proof of service, and give the last one to the Defendant along with all supporting documents when you serve him or her. If you fail to file your proof of service, the Court will assume you did not properly serve the Defendant, and they won't even list your case on the docket at trial day. They won't even call the case.
Notice of Intention to Defend: When you read the summons, you will see that it instructs the Defendant to file one of these if they intend to be present and defend themself at trial. This only has to be a very simple document. Nothing fancy is required. However, many Defendants don't even bother to file one. They ignore it, or fail to read the summons, or just forget. That does not mean you shouldn't show up. In fact, you should show up to be sure you get your judgment. It is not uncommon for Defendants to fail to file the Notice of Intention to Defend, and show up for Court anyway. If that happens, the Judge will just set the trial for another day. So it can cause a delay in your case if you fail to appear at trial.
While the Defendant is supposed to serve you with a copy of the Notice of Intent to Defend by mail when it is filed, many do not do so. For this reason, the Clerk of the District Court will send you a notice indicating that a Notice of Intent to Defend has been filed. When you receive this, you'll know that your case will be contested.
Motions: Motions are how you ask the Court to do something before trial. There shouldn't be a lot of motions in a small claims case. The only one which should be common is a request for continuance. A continuance is simply a postponement of the trial date. If you need to make a motion, type it up in a simple format and submit it to Court. Give it the title Motion for ______ and the fill in the blank with whatever it is you are requesting from the Court. If the Defendant files a Motion, you have 15 days to file a response. But do not wait that long. Get your response in as soon as possible.
Witnesses/Documents/Other Evidence: You can subpoena witnesses to appear at trial. Get them from the clerk and serve them on the witnesses the same way you served the summons on the Defendant. You can present documents without a lot of formality, but you must be able to testify that they are true documents and accurate copies of the original. If you have witnesses to present, or documents to present, or any other evidence that is not simple, then you should really get a consultation with an attorney to be sure you do it right.
Pre-Trial Settlement: Many times you can settle your case after you've attained service on the defendant, but before the case goes to court. There is nothing wrong with an out-of-court settlement if it is what you want to do. If you decide to settle your case before the day of court, you should get your settlement agreement in writing with the other party. The District Court Clerk's office has a form called a Stipulation of Dismissal which both parties need to sign and file with the clerk prior to the trial if the case settles. It is important that if you are dismissing your case that you reduce your agreement to writing and that all parties to the case sign the agreement prior to filing the Stipulation of Dismissal with the Court. We would be happy to prepare a settlement agreement and stipulation of dismissal for you for a nominal fee.
Trial: Once the summons is served, and the proof of service is filed, the trial will go forward. There is no pre-trial discovery in small claims, so there is not much to do until the court date. Pre-trial discovery usually involves interrogatories, which are questions from one side to the other side which must be answered, under oath, and are admissible in evidence at trial. You cannot do them for a small claim.
You should appear on the day of trial looking professional. You should have all documents or evidence with you that tends to prove your case. It should be neatly organized, and you should have a copy for the court, and a copy for the Defendant. You will have to give sworn testimony about the case and give your documents to the Judge. You can present other witnesses for your case. You will have an opportunity to cross examine the Defendant or any of their witnesses. The technical rules of evidence do not apply. However, you still have to be organized, and present your case in a manner that adequately and efficiently tells your story.
This is your chance to tell your story so make the most of it. Be prepared before you walk in the courtroom. Practice what you will say. Make an outline of your case that will make sense to the Judge. Remember, the Judge has never heard this story before and you have to clearly communicate the facts to him or her. Keep it simple, but address all the important details. Practice on someone else before you go. Make sure it makes sense.
The Judge will make his or her decision at the end of the case. Be respectful of the Court no matter what decision they make. Do not make the Judge angry. Take careful notes of what the Judge says when rendering their decision. If the Judge rules against you, you will have certain rights to appeal. Make sure you listen to the Judge explain the rules for appeals if you want to do that. You can call us for clarification if you wish. Any appeal must be filed within thirty days, so be careful of the dates if you want to go that route. If you miss the deadline, your right to appeal is forever lost.
Collecting the Judgment: If the Judge rules for you, you will have a judgment against the Defendant. How do you turn that into real money? That is often a difficult process. There are entire classes for lawyers on this very subject, and many lawyers will refer you to an expert in collections if you get a judgment that is not paid promptly. The first thing you should do is write the Defendant with a copy of the Judgment and ask them to pay it in full within 30 days to avoid further collection activity. Hopefully they will pay voluntarily. Most will, as nobody wants a judgment on their record. But if you get a judgment against a deadbeat, collecting will not be easy.
If they do pay, you have to file a form called line of satisfaction with the Court. If you fail to do this, the judgment will appear to be unpaid, and can negatively affect the Defendant's credit. If that happens, they may sue you later. You certainly do not want to give them any chance for a revenge lawsuit, so do not forget to file your line of satisfaction after the Defendant pays up.
If you need to undergo collection efforts, you can go to the Clerk's office again for more forms to file to enforce the judgment. Some options are to record the judgment in the judgment index, have it enrolled in the land records of the County in which the Defendant lives, garnish the Defendant's wages or bank accounts, or levy on personal property. You may want to file for a oral examination to ask the Defendant about his or her assets that you may garnish. The Clerk's office will help you fill out any of these forms. But collecting on a judgment is often much more difficult than actually getting the judgment in the first place.
If you obtain a judgment, but are having trouble collecting on it, please contact us. We handle judgment collection professionally and are familiar with all of the rules and laws that pertain to judgment collection. We will be happy to take your judgment collection on a contingent basis, meaning that we'll charge you no fee unless we actually collect. If we are able to collect on your judgment, our fee will be a percentage of what we collect. You will, however, be responsible for paying the costs that we incur in collection.
Conclusion: Again, it is best to get that consultation before you file your lawsuit. I hate to write this article purporting to tell you how to handle this yourself, and keep telling you to get a consultation. But there is no other reasonable way. It is just good advice. Each case is unique, and the unique facts of your case and the evidence you need to present is going to add a twist that a lawyer can spot during an in person consultation. If you want to schedule a consultation with one of our attorneys for $100, just call us to schedule an appointment.
We wish you the best of luck in your case.
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The information on this site is general legal information and should not be considered legal advice which pertains to your specific situation. Effective legal advice depends on understanding the unique facts of your particular situation, and applying the law to these facts. Please don’t think that reading this information makes you a lawyer. This information is no substitute for hiring an attorney.
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We hope the information on this site helps you understand your legal problem. We ultimately hope you will hire our firm to represent you. If you do not, we strongly encourage you to seek another lawyer for advice in any legal issue you encounter. If you represent yourself in any serious legal matter, you are playing with fire. And you could easily make your situation much worse. At the very least, seek a meeting with a lawyer for a consultation. Most attorneys charge a small consultation fee for meeting with them to discuss your legal problem and seek advice. That is money well spent.
We practice in Maryland, and this information is based on Maryland law. The free legal information on this site strictly pertains to Maryland. If you are not in Maryland, stop now. Your state’s law is probably different. See a lawyer familiar with your state’s law.
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