Small Claims Settlement Tips
Tips For Using Small Claims Court In Texas
Limits, Forms And Court Info
I think an attorney would tell you that it is never beneficial, but I am not an attorney so I say it is beneficial when one can’t afford an attorney and has the time to invest in a little research.
Small claims courts are for the people, so the people should use them. I can’t speak for the rules in States other than Texas (they are very similar), but I have been in front of a few small claims courts in Texas, Florida and Arizona, and for the most part, they are worthwhile provided you follow the rules. The rules in Texas can be found in Chapter 28 of the Government Code.
This chapter of the Government Code sets forth the rules of battle. I will try and give some pointers about the rules in as simple a manner as possible for the benefit of the public reading this article.
Keep in mind that this article is not legal advice, just some pointers on procedure that I have gleaned from my experience as a corporate litigation specialist for insurance companies.
Before I go into the pointers for suit, I would like to say that a great alternative to filing a suit (if you are actually in contact with the person you have the dispute with) is an agreed mediation. The cost might be a little more than what a suit would cost, but going to a mediation doesn’t have the “bully” effect that going to court has. Nobody likes a bully. People and businesses that are hard to deal with may fight even harder if you file a suit, but a lot of times they are not as defensive if you are open to the idea of alternative forms of settlement.
With that being said, here are some basics as they relate to Texas small claims suits. These pointers are not all inclusive and meant solely as a guide for those wishing to embark on a suit without the help of an attorney. Surely winning your suit will take much more time and research than you can get from this article.
- 1. In order to file a small claims suit in Texas, your total damages cannot be more than $10,000
- 2. You can only sue for monetary damages, not for the return of property or for an order to make somebody do something
- 3. You can only sue for your own damages, not for somebody else’s, even if they assign you the right to sue.
- 4. You can only sue the person or business that actually caused the damages (you can’t sue the insurance company of the person that hit your car, only the person that hit your car and in some cases, the owner of that car if it wasn’t the same person).
- 5. Unless you are suing for the breach of a contract, you only have 2 years to initiate suit
1. First and foremost, you have to have know who to sue.
If it is an individual, then it’s simple, just make sure you have their proper name and address. If it is a company, then you need to figure out who the “agent for service of process” is. You still have to name the business on the actual petition (the official complaint requesting suit), but you have to know who to send the complaint to so that it will count.
Normally, if the business is a corporation you can call the Secretary of State and they will tell you who the agent is, or if you can’t track the information down on the agent, then name the president of the company or the highest officer of the company as the person you want to have the court “serve”.
2. Once you know who to sue and who is going to get the suit papers, you have to figure out the correct precinct based on the address where the person you are suing lives.
You will need to determine what County the address is in and then look up in the phone book the number to any of the Justice of the Peace courts, or the municipal court in that county. Once you have one of the courts on the phone, ask them for assistance in determining what precinct the specific address falls into. Now you have the right precinct, just make sure you file the suit in the Justice of the Peace Court for the right precinct in the right county.
1. The petition is the first thing you need in order to get a suit going. It is the actual complaint that tells the court who you are suing and why. Don’t forget to include the date that the “action” occurred which caused you the damage you are suing for. The Government code sets forth what has to be in the petition and a lot of times if you talk to the right court clerk, they will either provide you with a form to fill out, or answer basic questions about procedure (they cannot give legal advice).
2. So if all has gone well, you have been able to find the proper precinct and either fill out a basic petition or write one up based on the way the Government Code dictates, and now you just need to mail the form to the court.
The cost of a small claims suit is relatively cheap. There is some minor fluctuation in the cost based on the charge for service (the act of actually giving the sued person notice of the suit), but in general a small claims suit can be initiated for less than $100. The court will charge a filing fee of around $17 and then the constable will charge between $50 and $65 to actually deliver the notice of suit or citation (a brief note that the court produces that mainly says “you have been sued” and provides the person being sued with some basic instructions and deadlines for defending themselves.
In most cases, you can just combine the payment for filing and service of the citation into one payment and make it all payable to the Justice of the Peace. You can also ask the court to include your filing and service cost in the award that you win, provided you win. That’s it! Pretty cheap.
After you have filed the suit, you will need to give the court a few days or even a week or so to get the paperwork out to the person you sued. You will have to call the court and ask the clerk for a status on service.
Once the paperwork has been properly delivered, the clerk will tell you when “service has been perfected”. Once you have this date, write it down because the person you sued has a limited time to defend themselves. In Texas, the small claims courts give them 10 (business) days following the first Monday after the date they were served. This is not a lot of time and many people fail to file an answer to the suit within the deadline. If you are on top of things you can “move” or ask the court (in writing) for a default judgment (an order stating you won because the other person didn’t fight).
The good thing about small claims court is that they are normally not sticklers about the form of the requests you send them. The government code allows the Judge to determine the rules, pretty much, so most Justices of the Peace realize that the layman is not trained in proper legal form. If a person just asks for the right thing at the right time, the court will normally help by either providing you with a form, or telling you where to look for an answer. I find that Judges and court clerks truly want to see justice served in most cases. If you are sincere and really needed to file the suit in the first place, they can tell and will try and point you in the right direction.
Sometimes, the person being sued will hire an attorney to answer the lawsuit for them. In this case, you will probably be a little bit confused as the attorney will most likely request a jury trial and commence with some discovery.
Keep in mind, if you get a request from an attorney saying you have to answer a bunch of questions because of discovery, the rules of small claims court allow for only reasonable discovery which is approved by the Judge (check out the government code). A good way to get around a bunch of paperwork from an attorney is to immediately write a letter to the court and ask that the Judge review what the attorney is asking for and limit the questions to what is reasonable. The court will look it over and send it back to you in an amended form. Normally they will allow 5 to 10 questions unless your case is really complicated and you have witnesses or other questionable evidence.
If you have a complicated case, then small claims court isn’t the place for you. If the Judge says you have to answer questions, remember that you also have the right to ask some basic questions, so just take your lead from the attorney and make sure you know at least as much as about the person you are suing as the attorney is getting about you. If there is no attorney involved, then the court will just set up a time to have a hearing. Unless somebody asked for a jury and paid a small jury fee, the hearing will be a bench trial, meaning the Judge will be the decider of the facts.
The Best Way To Win
The best way to win a small claims suit is to be right, hehe. If you are right and the person actually owes you money, then make sure you have evidence that supports your claim. Small claims court is a civil venue and the burden of proving the case is on the person suing, so that means you. It’s not like a criminal court where you have to prove it beyond a reasonable doubt. You will only have to prove that it is “most likely” the fault of the other person that you suffered the damages you are trying to recover, but you have to support your story with evidence like a witness statement, photos, estimates of damages or a receipt, and so on and so on.
Just use your head and bring with you what you need to show that you did sustain damages, how much they are, and that the other person caused them. Judges have a knack for picking out a liar, so if all you have is the truth, that’s okay, but make sure it’s the truth.
Your day in court can be scary. The advice I have for you is to speak only when spoken to, and to make sure you get to your point quickly. Judges are very busy and somebody that can’t clearly explain why they are there will quickly get on the Judges nerves, and that is not a good thing. Prepare and practice saying what you need to say before you go up there. Don’t worry about what the other person is going to say, just make sure you say what you need to say.
The Judges in small claims courts are normally very patient, but if you are prepared and you have all your evidence in line when he asks you why you are suing, then you will do much better.
As the person suing, you will be asked to give your case first.
When this happens remember the following tips:
- Make it short and sweet. No more than 1 minute should be used to make your opening statement.
- Tell the judge who did what, when they did it, and how much damage it caused you, and then shut up.
- Offer your evidence after you have given your short statement.
Here’s an example of what I would consider a good opening statement:
“Your honor, on June 19th, at the intersection of Main St. and Park St, Mr. Smith ran a red light, rammed into my car, and caused $2518.00 in damages. He has refused to pay for my damages. Here is the repair invoice, estimate, police report, the letters I wrote to him, the rental car bill and pictures of mine and Mr. Smith’s car after the wreck.”
Small claims court is not that difficult to utilize, but it takes a little research, and good nerves and good record keeping. Any type of litigation is nerve racking and without the help of an attorney it can be confusing, but if you can read and are willing to research for the answers you need, you can find them. All the answers you need are available for free, and in most cases on the internet.
Don’t sue unless you have tried everything else. Litigation is a last resort but sometimes if you have someone or some company that is ignoring you and hoping you will go away, or just refusing to do the right thing and pay for damages they caused, then initiating a suit will force them to address the problem. Sometimes they will even go ahead and pay you instead of taking the time to fight in court.
My experience with small claims court is unique in that I represented the interests of an insurance company and had many suits going at once. I got a lot of practice, and I filed a lot of suits. The normal person would rarely have more than one or two small claim suits within their lifetime, but the rules are written so that the people can have access to the courts for matters that are not of too much consequence (up to $10K).
If you have to use the court, then use it…otherwise try and work out your differences in a friendly manner. You would be surprised what the right approach to resolving a conflict can produce. You can find a copy of the Texas Small Claims Statute at www.statutes.legis.state.tx.us/Docs/GV/htm/GV.28.htm.