How to File a Personal Injury Lawsuit in Small Claims Court

Here’s what you should know about the forms and other tasks you’ll need to complete to file an injury lawsuit in most small claims courts.

Filing a lawsuit is usually the last resort for pursuing injury claim compensation. It’s hard to know when it pays to file a lawsuit, whether in small claims court or full-blown civil litigation.

For many people, filing in small claims court is the best litigation option for seeking injury compensation from the at-fault party.

Small claims court is appropriate for injury claims when you’re seeking a relatively small amount of compensation, and other settlement options have failed.

While each state has different rules for filing a small claims lawsuit, we walk you through common procedures and paperwork.

Getting Ready to File in Small Claims Court

If you’ve decided to file a small claims action because claim negotiations have dragged on for many months, be sure to verify the statute of limitations for your state. The statute of limitations is a legal deadline to settle your injury claim or file a lawsuit.

For most injury claims, the statute begins to run on the day you were injured.

Filing a small claims lawsuit can stop the statutory deadline from running out, known as “tolling” the statute. But if you’ve missed the deadline, you forfeit your right to recover any compensation for your injuries.

Know Your Claim’s Value

If you haven’t already, now is the time to calculate the amount of compensation you would need to resolve your injury claim.

Each state has its own monetary limits for small claims court and other rules about compensation. Some states only allow recovery of actual expenses from your injuries, with no provision for pain and suffering.

If your personal injury claim value is more than your state’s limit, you can still file in small claims court so long as you’re willing to resolve your claim for the lesser amount. You can’t file another action to recover additional compensation for the same incident.

If your claim value is too high for small claims court, consider talking to an experienced personal injury attorney about your compensation options.

Who Are You Suing?

Get the full name and mailing address of the party you plan to sue in small claims court. You’ll have to provide contact information for the defendant when you file your lawsuit.

If you intend to file a lawsuit against a business, say after a slip and fall injury, make sure you have the “legal” name of the business that may be under a parent company.

Lawsuits are always filed against the party who caused your injuries.

For example, if your injuries are from a car accident, you may have been negotiating with the at-fault driver’s insurance company. When you decide to file a small claims lawsuit because your claim was denied, you must sue the at-fault driver, not their insurance company.

Insurance companies have a “duty to defend” their insured in a lawsuit. When you sue an insured party, their insurance company will usually hire a lawyer to defend them in court, even if the insurance company previously denied your injury claim.

Confirm the Venue

The venue is a legal term for the court jurisdiction where you must file your lawsuit. Many states have designated “small claim” courts, while other states hear smaller cases in Municipal Courts, Justice of the Peace Courts, or subdivisions of their District Courts.

In most cases, you must file a small claims lawsuit in the county where the defendant lives. If the defendant is from out of state, you may have to file in the county where your injury occurred.

Locate the proper venue by searching online or calling your local county clerk’s office. The clerk will assist you or direct you to the correct court.

Once you’ve confirmed the correct court, you can probably get the filing forms online. You can print paper forms to be filled out and filed in person, or depending on the court; you might be able to file your small claims case online.

Filing a Small Claims Lawsuit Petition

Whether online or in-person, you must complete and file an official complaint form and pay a filing fee to initiate your small claims lawsuit.

It helps to know a few legal terms when you’re ready to file a small claims case.

Legal terms used in lawsuits:

  • The Plaintiff is the party filing the lawsuit. You are the plaintiff, even if an attorney files the case for you.
  • The Defendant is the party you are suing who caused you harm.
  • The Complaint, also called the Petition, is the document filed to begin a lawsuit.
  • Service of Process is the way the defendant is notified of the lawsuit.
  • A Subpoena is a court order that tells someone to come to court or to hand over certain documents.
  • The Verdict is the judge or jury’s final decision about your case.

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 personal injury compensation, the key information includes:

  • Your name and contact information
  • The defendant’s name and contact information
  • The date your injury occurred
  • Where your injury occurred
  • A brief description of the 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:

Sample small claims court petition

Do You Want a Jury Trial?

Most small claims cases are “bench trials” meaning they are handled by a judge who listens to both sides, then decides the outcome of the case.

Judges are experienced and unbiased. They know the law and aren’t swayed by emotions or sympathy for one party or the other. You can expect a small claims court judge to make a fair decision.

In states that allow small claims cases to be heard by a jury, the petition will include a box to check if you’d like a jury trial. Texas and Oklahoma are among several states which permit small claims trials to be heard before a jury.

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. They take longer and require a lot more work on your part.

Juries often vote with their emotions. You might think that juries don’t like to see a “little guy” get taken advantage of by a big, bad insurance company lawyer when you’re up there on your own. However, juries can be swayed by a convincing court presentation. What if they feel sorry for the defendant instead of you?

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 concise. 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 Slip and Fall

Six months ago, on June 2, I was shopping at the Acme Hardware store on Main Street. While shopping, I slipped and fell on water which had pooled on the floor. As a result, 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 $2,900. The defendant has refused to pay.

Avoid Delay and Dismissal

Many small claims lawsuits are dismissed every year simply because they weren’t filed correctly.

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.

Notifying the Defendant of the Lawsuit

Once you arrive at the clerk’s office and complete the petition, you’ll have to pay the filing fee. After your lawsuit is filed, the defendant must be notified with a set of court documents. This is known as “service of process.”

You can’t serve the defendant yourself. That could create a conflict of interest and possibly a personal confrontation between you and the defendant.

Some states allow the defendant to be served by certified mail sent by the court clerk. However, because many states require “personal service,” you may have to pay an additional fee to have a local sheriff or constable officially serve the defendant.

Some states allow private process servers to do this, but they are expensive and used mostly by attorneys who want to have defendants served quickly.

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 defendant has an insurance company that was jerking you around before you filed a lawsuit, you can be sure the defendant will be on the phone with the insurance company, 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 days are 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 case and can proceed to collect your money.

Seeking a Subpoena

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.

Depending on the population in your area and the number of cases on the court’s docket, you may have to wait for one to six months before you receive a second letter setting the trial date. The defendant will receive a similar notice.

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, such as:

Sometimes you can’t get some of the evidence you need without a subpoena. Technically, a subpoena is an order that directs a person to appear in court, while a subpoena duces tecum is an order requesting specific items or documents.

You could use a subpoena to ask for:

  • A witness to appear at your small claims trial
  • Surveillance camera footage from the day you were injured
  • The internal incident report from the business where you were injured

Talk to the clerk of the court where you’ll be having your small claims trial about issuing a subpoena. Generally, you’ll need to fill out a subpoena form with:

  • The name of the court where your case is filed
  • The title of your case (such as Jones vs. Smith)
  • Your case number
  • A demand for a specific person to produce documents or other evidence, or to appear in court at a certain date, time, and place

The clerk will “issue” the subpoena by stamping it or having it signed.

Serving a Subpoena

A subpoena must be “served” on the intended recipient, often in the same way your small claims petition was served on the defendant. You might have to pay an additional fee to have your subpoena served by the sheriff or constable.

If you think you’ll need a subpoena, allow plenty of time for the court to issue a subpoena, to serve it on the right person, and for the person to respond. Most states require a subpoena to be served at least 20 or 30 days before you expect the person to appear or produce documents.

The recipient of a subpoena has the right to send you a written objection to your request. You would have to ask the court to “compel” the party to cooperate with your subpoena.

Alternately, the recipient could file a motion with the court to “quash” your subpoena. In other words, they would be asking the court to deny your request. However, a subpoena is usually only quashed for a good reason, like if you are asking for a witness to appear who no longer lives in the state.

Consider Talking to an Attorney

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 personal injury attorneys don’t charge for their initial consultation. There’s no obligation, and it costs nothing to find out what a good attorney can do for you.

Video: Filing a Small Claims Court Petition

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>