Don’t walk away from your car accident claim without a fight. See how to sue the at-fault party for personal injuries in small claims court.
Small claims court is an option when you’re seeking a relatively small amount of money, and other settlement efforts have failed. These courts are designed for people who prefer to handle their case without an attorney.
Each state has monetary limits for small claims courts, and many don’t allow claims for pain and suffering.
Filing a lawsuit is usually the last resort for pursuing injury compensation. If negotiations with the at-fault driver’s insurer have stalled and the statute of limitations is about to expire, a lawsuit is necessary to preserve your right to compensation.
Tort cases, meaning civil cases for personal injuries, can be filed in small claims court, district court, or superior court, depending on the amount of money sought and the complexity of the case.
Here we walk you through the small claims court process, procedures, and paperwork for car accident injury claims.
Filing a Small Claims Lawsuit Petition
Whether online or in-person, you must file an official complaint form and pay a filing fee to initiate your small claims lawsuit. The person filing a lawsuit is the Plaintiff. The person being sued is the Defendant.
You won’t sue the auto insurance company that failed to pay your claim. Your lawsuit will be filed against the at-fault party who was covered under the insurance policy. In a car accident case, you must sue the at-fault driver, even if they weren’t the registered owner of the vehicle.
You must file your action in the county where the defendant lives, or where the auto accident occurred.
Each state has its official petition (or complaint) form. Small claim court petitions typically ask for key information. If you’re filing a small claim lawsuit for car accident compensation, the key information includes:
- Your name, phone number, and contact information
- The defendant’s name and contact information
- The date and time of the accident
- Where your injury occurred
- A brief description of the automobile accident or circumstances that caused your injuries
- The amount of money you demand for compensation
Most petition forms are simple, one-page documents, similar to this example:
In states that allow small claims court cases to be heard by a jury, the petition will include a box to check if you’d like a jury trial. Some states allow the defendant to choose a jury trial, even if the plaintiff didn’t ask for one.
Think long and hard before requesting a jury trial. Juries can be unpredictable and swayed by emotions.
If the facts of your case are a little shaky, but you feel like a jury would react favorably to your argument, you might do better with a jury. If you believe your facts and evidence are solid, go with a bench trial.
Summary of Facts
The summary section is where you’ll describe why you are suing the defendant. The summary should be short and to the point. You don’t want to give the defendant advanced notice of your evidence, or the strategy you intend to use at trial. You’ll cover the specifics of your case in court, not in the complaint.
Example: Summary of Facts for a Rear-End Accident
“I was driving to work and while waiting at a red light, I suddenly felt a severe impact from behind. The defendant failed to stop and slammed into the back of my car. My neck and back were abruptly jolted, and I immediately felt severe pain. I was injured and required medical treatment. I also had out-of-pocket expenses for medications and related items. While recovering, I had to miss work and wasn’t paid for the days I missed. My total damages are $4,900. The defendant has refused to pay.”
Avoid Delay and Dismissal
To avoid a delay or dismissal, carefully review the information you entered on the complaint form. All names must be spelled correctly and include a middle initial if one is used. Street numbers and addresses must be accurate. Most states don’t allow a post office box as an address, so be sure to use complete street addresses and apartment numbers.
An incorrect name or address can result in the defendant not being served by the court’s process server, causing an unnecessary delay.
When defense attorneys catch a misspelled defendant’s name, incorrect address, or wrong date of the dispute, they can file a Motion to Dismiss due to the plaintiff’s failure to correctly identify the defendant.
A few states require an affidavit, meaning a written sworn statement, attesting that you tried other methods to settle your claim before filing a lawsuit. Your petition might be rejected without a valid affidavit attached, for example, if your affidavit isn’t notarized.
Many courts have a small claims self-help website to guide you through filing your lawsuit.
Notifying the Defendant of the Lawsuit
After your lawsuit is filed, the defendant must be notified (served) with a set of court documents.
You can’t serve the defendant yourself. Some states allow the defendant to be served by certified mail sent by the court clerk. However, because many states require personal service of process, you may have to pay an additional fee to have a local sheriff or constable officially serve the defendant.
One positive effect of having the defendant served by a local sheriff, marshal, or constable, is the shock they may experience when a uniformed officer with a badge and gun comes to their home or workplace.
The distress of being served is often enough to prompt a settlement. No one likes getting sued.
If the at-fault driver’s insurance company was jerking you around before you filed a lawsuit, you can be sure the driver will be on the phone with the adjuster, demanding to know why they were just served a summons to appear in court.
What Can Happen After the Defendant Is Served
In most jurisdictions, the defendant has 20 days to respond to your lawsuit. The defendant can respond within the 20 days and plan to see you in court. Other possibilities are:
- The defendant might pay your demand before the 20-day time limit is up. Then you would ask the court to dismiss your small claims case.
- The defendant might file a counterclaim. You would then have 20 days to respond, or your case would be dismissed.
- The defendant might ignore notice of your lawsuit and fail to respond. You would have the right to ask the court for a default judgment, meaning you won your motor vehicle accident case and can proceed to collect your money.
Within a few weeks of filing your petition, you’ll receive a letter from the clerk’s office, letting you know the defendant has been served. After that, presuming the insurance company doesn’t contact you to settle the case, there will be a waiting period before the trial date is set.
Preparing Your Evidence and Arguments
During the waiting period, you should be preparing your case, which includes gathering good evidence.
As the plaintiff, you bear the burden of proof to show you were injured because the defendant did something wrong or failed to do the right thing. The judge won’t simply take your word for it.
You must have evidence to support your case, like the car accident police report, witness statements, medical bills, and wage statements.
Sometimes you can’t get some of the evidence you need without a subpoena, such as a store surveillance video that captured your slip and fall. Talk to the clerk of the court about issuing a subpoena.
If you think you’ll need a subpoena, allow plenty of time. Most states require a subpoena to be served at least 20 or 30 days before you expect the person to appear or produce documents.
Practicing Your Presentation
Practice your presentation out loud, over and over. Your practice should include reaching for the document that supports what you’re saying and pretending to hold it up for the judge to see.
You can’t have too much practice. Ask friends or family members to listen to your presentation and case summary. It won’t be so strange to speak in front of the court if you’ve already practiced in front of people.
Plan to dress appropriately for court. Have at least one “dress rehearsal” wearing your court clothes while delivering your testimony and case summary. The more you practice, the more at ease you will be when you stand up in court.
Try to make time before your trial date and visit the courtroom where your small claims case will be heard. Just sitting through a few trials will give you a tremendous advantage. Being familiar with the setting will relieve much of your anxiety about the procedures, timing, and overall process.
Presenting Your Injury Case in Court
As the plaintiff, you will present first. You’ll have five to ten minutes to tell your story and present your evidence. Give the judge and the defendant each a set of your document copies before you begin to speak.
Introduce yourself, then give your presentation. If the defendant tries to interrupt or has an outburst, ignore it. When you’re finished speaking, thank the judge for listening.
You don’t have to be an experienced public speaker to give a good presentation in small claims court. You only have to know the facts of your case, be sincere, and express as truthfully as you can how your injuries affected your life.
1. Make a Brief Opening Statement
Be prepared to make a brief but clear opening statement covering the following points:
- When and how you were injured
- Why the defendant is liable for your damages
- The total amount you’re suing for
- The evidence you will offer in support of your case
The small claims court process doesn’t require you to present evidence during your opening statement. You can refer to it, but don’t start passing it out. You’ll offer evidence after your opening statement when the judge tells you to proceed with your case.
2. Present Your Best Arguments
While presenting your case, offer each piece of evidence to the court in chronological order, meaning in the order that follows your story from beginning to end. Bring the original documents with you to court in case the judge asks for them.
Bring at least three sets of copies. One set is for your trial folder. The other sets are for both the judge and the defendant. Include a cover sheet listing each document in the order you’ll be mentioning them in your presentation.
Whatever you describe, back it up with evidence. For example, when you talk about not being able to care for your child, reference the doctor’s note that restricted you from bending or lifting. If you had property damage to your vehicle, produce the repair shop bills.
When it’s the defendant’s turn to speak, don’t react or comment. Act professional.
When both sides finish, the judge may allow you to give a closing statement. Be ready to give a short and compelling summary of your case.
3. Finish with a Strong Closing Statement
After both sides have given their presentations and all the witnesses have testified, the judge may ask if you have anything more to say.
Take the opportunity to underscore the main points you made in your presentation. Keep it short, brief, and to the point.
If the defendant made outrageous claims, don’t start another argument or attack their evidence, but make sure your closing argument includes your counterpoint.
You may not receive a verdict on the same day as your trial. Some judges take time to consider the matter before issuing an opinion. Both parties will be sent written notification of the verdict, usually within two weeks.
Improve Your Chances of Winning in Court
Getting a first-hand look at the courtroom styles in your jurisdiction will help you be more comfortable with the trial process. Small claims judges differ in the way they run their courtrooms. Some judges are relaxed. Others, especially in larger cities, are more formal.
For example, one judge might ask you to simply stand and present your case. Another might require you to be sworn in by the bailiff and testify under oath from the witness stand.
Once you know where your case will be heard, go to the courthouse and observe other small claims actions. If you know which judge will preside over your case, try to sit in on a small claims trial with that judge.
Common Courtroom Etiquette
Your personal demeanor can have as much impact on what happens in your trial as your presentation of facts. What you wear and how you talk to the judge and others in the courtroom can boost your credibility with the judge and jury.
Keep your cool, no matter what happens on the other side of the courtroom. Here are some tips:
- Always address the judge as “Your Honor” or “the Court,” as in, “Good morning, your Honor. My name is…”
- Ask permission before walking toward the judge during the proceeding, or you might get in trouble with the bailiff. You can ask the judge, “May I give this packet of evidence to the Court?”
- Stand up when addressing the court.
- Never interrupt the judge.
- The judge can interrupt you. If the judge asks you a question, give a concise answer, like “Yes, Your Honor” or “No, Your Honor.” Don’t launch into the backstory.
- Don’t interrupt anyone else who is speaking in court, no matter what they say. Don’t make noises or faces, either.
- If anyone else interrupts you, ignore them. If they continue to interrupt, they’ll probably be admonished by the judge. That’s good for you, bad for them.
- Be very polite to the other party and their witnesses. Say please, and thank you. Call them by their names, like Ms. or Mr. Taylor, not “The drunk idiot who rear-ended me.”
Consider Talking to a Car Accident Lawyer
While small claims courts are designed for people to settle small monetary disputes on their own, the reality is you could end up in court facing the defendant’s lawyer. The judge would treat you fairly, and you can win with a good presentation of a strong case.
Are you nervous about appearing in court? Is filing in small claims a good choice for you?
Let a skilled attorney help you decide if small claims court is the best place to get the injury compensation you deserve.
Most injury attorneys offer a free consultation to accident victims. No matter if you were in a car accident, slip and fall, or some other type of personal injury case, you deserve good legal advice. There’s no obligation, and it costs nothing to find out what a good attorney can do for you.
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