The 5 Steps to Filing a Small Claims Lawsuit for Personal Injuries

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The small claims process starts the day the lawsuit is filed and ends when the verdict is rendered, but there are important aspects of your case that begin well before the trial takes place. The basics of small claims lawsuits are similar across the United States, but the specific procedures vary, so check your county court's requirements carefully.

States refer to their small claims courts differently. Some call them Municipal Courts, City Courts, or Justice of the Peace Courts. The name depends on your state and the types of cases that are heard. If you can't find the right small claims court, ask at your county clerk's office. The court may also be listed on your city, state or county's website.

A small claims personal injury case begins when the plaintiff files a "complaint" or "petition." The at-fault party (the defendant) then receives notice of the lawsuit. Witnesses and evidence can then be subpoenaed. A trial follows, where both sides try to convince the judge or jury of their position. Finally, a verdict is rendered.

Five basic parts of a small claims lawsuit:

  1. Determining whom to sue
  2. Filing the lawsuit
  3. Subpoenaing witnesses and evidence
  4. The trial
  5. The verdict

1. Determining Whom to Sue

Before filing a lawsuit, you must know who you are suing. You won't sue the claims adjuster or insurance company. Rather, you must sue the insured - the actual person or company responsible for your injuries.

While the insurance company can defend a small claims lawsuit on behalf of their insured, the company is not officially "party" to the lawsuit. If the defendant was uninsured at the time you were injured, no insurance company will be involved.

Note the exception: If the insurance company or its claims adjuster acted in bad faith, you can sue the company directly. If this is the case, you'll need an attorney.

2. Filing the Lawsuit

You must file your lawsuit either in the county where the injury occurred, or in the county where you or the defendant resides. To file a small claims suit, sometimes referred to as a "complaint" or "action," you'll need to pay a small filing fee. It shouldn't be more than a hundred dollars. If you win, you can ask the court to include this fee in its verdict.

You'll have to complete a short form including the reason(s) for your lawsuit. Don't go into detail. If so, the defendant will know exactly what you plan to argue. The defendant would then have time to prepare a defense to counter each of your arguments.

Instead, be general. A few sentences describing the basic reason for your lawsuit is all you need to get the ball rolling. You will be much more specific when you actually get to trial.

Once you pay the filing fee and complete the small claims petition, you'll have to wait a few weeks for them to notify the defendant. He may get served notice of the lawsuit by certified mail, or in some states, at his work or home by a sheriff or constable. Either way, it will probably be quite a shock to the defendant.

The lawsuit notice will include the trial date. You'll receive a similar notice by postcard or form letter from the small claims clerk.

3. Subpoenaing Witnesses and Evidence

Most small claims courts permit parties to subpoena witnesses and documents relevant to the trial. Subpoenas should be free. Just ask the small claims clerk for one or more subpoena forms. Enter the case number supplied by the clerk and the witnesses' names, plus any documents or other evidence you want them to bring.

If there are witnesses who agree to testify on your behalf, they may require subpoenas to show their employers, so they can be excused from work.

You can request subpoenas be served on friendly and unfriendly witnesses, but you only want witnesses who will help prove your case in some way. Never subpoena a witness merely to harass him or her. That will backfire badly in front of a judge.

4. Your Day in Court

A small claims trial is basically a refereed argument between you and the defendant. The judge serves as the referee, and unless a jury is hearing the case, the judge will also render the verdict.

The simplicity of small claims courts relieves you from having to worry about legalese like "objections," "hearsay," and other legal terms. The judge wants to hear the case as quickly as possible, and not have it hampered by strict procedural rules. You only have to focus on the facts of your case.

Although the judge will give both sides some leeway when it comes to out-of-court statements made by third parties, you'll be a lot safer by having all your witnesses there and ready to testify. If not, you'll have a difficult time convincing the judge of the truthfulness of their statements.

Preparing for Court

Before going into court, organize and prepare your case. An old law school professor was fond of saying, "The lawyer who is better prepared will win 9 out of 10 times."

In court, it's important for you and your witnesses to dress appropriately. No t-shirts, jeans, shorts, or sandals. If possible, wear a jacket and tie. Judges notice those who show respect to the court. Your appearance also makes a statement about your professionalism, determination, and belief in your case.

Write down the main points you want to address well before you enter the courtroom. The judge will have many cases to hear that day, and she'll be moving your trial along at a rather fast pace. Most small claims court judges try to hear each case within ten minutes to an hour.

You won't have more than a few minutes to present your side of the case, so it's important that your witnesses are prepared.

Prepping Witnesses

There's a good chance the judge will make the witnesses from both sides wait in the hall during trial, and instruct them not to discuss their testimony while waiting. Knowing this, make sure your witnesses arrive at the courthouse fully prepared to give consistent testimony. DON'T tell them to lie. Just make sure they give similar versions of the facts.

Judges don't want witnesses sitting in the courtroom listening to other witnesses' testimonies. It raises the possibility they will just repeat what was previously said by another witness, or that they'll avoid contradicting what another friendly witness said.

If you've prepared your witnesses properly, right before the trial begins, ask the judge to require all witnesses to wait in the hall until called, and not to discuss their testimony with each other. Don't worry about quoting a specific section of the rules of evidence. Just simply ask the judge to have the witnesses wait in the hall.

Ask politely. The judge will understand exactly what you mean, and will probably be happy to comply. That will give you a great advantage if the defendant hasn't prepared his witnesses.

Presenting Your Case

Because you're the plaintiff (also known as the "petitioner" or "complainant"), you'll be the first to present your side of the case. Make each of your points clear and brief. You'll only have one chance to get it right, so it's a good idea to practice your presentation multiple times beforehand.

Don't interrupt the defendant or any witnesses while they are testifying. The judge won't like it, and she's the last person you want to antagonize. When the defendant and his witnesses finish testifying, you'll be permitted to cross-examine each of them. In some cases, the judge may do it for you.

Because you don't know what the defendant or his witnesses are going to say, it will be difficult for you to prepare beforehand the questions you'd like to ask them during cross examination. Don't worry about that. If you've presented your portion of the case convincingly, the judge will sort out the truth.

Don't argue with the defendant while he's speaking. Ignore him if he interrupts you when you're testifying, or later in the trial when you're summarizing your case. The judge will admonish him and probably ignore anything he said during the interruption.

At the conclusion of all testimony, the judge may ask you both to summarize your cases. Just like the points you prepared before trial, you must also prepare your summary, or "closing statement." Summarize each point you made in the case, and explain how the testimony and evidence supports each of those points. Closing strong can pay big dividends.

5. The Verdict

After hearing all of the testimony, the judge or jury will render their decision. If you lose, you may be able to appeal your case to a higher court. If you do, you'll need an attorney. Higher courts are no place for a novice. Judges enforce strict rules of evidence, and you'll have to deal with motions and other legal maneuvers from the defendant's lawyer.

If you win a small claims lawsuit against the insurance company, they should send you a check within two weeks. Unless your verdict is quite high, as is possible in Tennessee and other states with high small claims limits, it's doubtful the insurance company will appeal. It's just not financially prudent for them to do so.

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