About Me

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Rachel Kosmal McCart is a lifelong horsewoman and the founder of Equine Legal Solutions, PC, an equine law firm based in the Portland, Oregon area. Rachel is a member of the New York, California, Oregon and Washington State bars and is admitted to practice before the U.S. District Court for the District of Oregon and the U.S. District Court for the Central District of California. Rachel currently competes in three-day eventing.

Thursday, July 5, 2007

Tips for Small Claims Court


Because of the dollar amount involved, many horse-related cases end up in small claims court. Here are a few tips for getting the most out of your small claims experience:

Cases that Should Go to Small Claims.
  • Claims where you are seeking money damages only in an amount equal to or less than your state's small claims limit.
  • Claims that exceed the small claims limit but may be too expensive to litigate in regular civil court, such as claims in the $10,000 - $15,000 range. Note that in such cases, you would have to reduce the claim amount to the small claims limit.
  • Claims that are not rock-solid, especially those with more emotional than legal appeal. The cost of litigating in small claims is low, so if you lose, it will not cost much (but note that if the other side incurs attorneys' fees, you may have to pay them).
Cases that Should Not Go to Small Claims.

  • Claims of $25,000 or more.
  • Claims where you have a good basis for recovering attorneys' fees (such as a breach of contract case where the contract specifies attorneys' fees, or a case that involves a claim providing for statutory damages, such as copyright disputes).
  • Cases where small claims will have no jurisdiction over the defendant, such as where the defendant lives outside the United States.
  • Cases in which you are seeking an order for the other side to do something, such as give you possession of a horse.
Advantages of Small Claims.
  • No attorney is necessary, and while you can have an attorney assist you in preparing your case (which we recommend), you must speak on your own behalf in court. Considering that in regular civil cases, you can expect to spend $10,000 or more in attorneys' fees alone, this can be a benefit. This can also be a detriment if you are not a skilled public speaker - see disadvantages below.
  • Your claim will likely be heard much more quickly than in regular civil court, and you will receive a decision quickly after the hearing. In situations such as boarding disputes where you have ongoing costs until the matter is resolved, this is a distinct advantage.
  • Your court costs will generally be $100 or less, compared to $500-1,000 per filing for regular civil court. You can typically ask for those costs as part of your claim. This is not true in regular civil court, where court costs are rarely awarded.
  • Despite the fact that you can't have an attorney speak for you in court, if you have an attorney assist you with your case, you can claim attorneys' fees as part of your small claims court claim and have a good chance of being awarded such fees if you win your case. This is not true in regular civil court, where attorneys' fees are rarely awarded.

Disadvantages of Small Claims.
  • Your claim is limited to the amount set by your state, typically under $10,000, plus court costs and attorneys' fees.
  • You can only seek money damages.
  • Small claims court is unpredictable. Some of our clients have gone to small claims with seemingly rock-solid cases and lost. Others have gone with shaky cases and won.
  • The quality of the jurisprudence (i.e., qualifications and experience of small claims judges) is not always very high). See our note about pro tem judges below. You cannot expect the US Supreme Court (or even Law & Order, for that matter).
  • You have to present your own case to the judge and can't have an attorney speak for you.
  • It can be hard to collect a judgment, as the remedies available for collection in small claims are more limited than those in regular civil court.
Serving the Other Party. We recommend hiring a professional process server rather than relying on the service by certified or registered mail that some small claims courts allow. Most people (especially deadbeat types!) know that no good news ever arrives via registered or certified mail, so they won't sign for it. By the time you figure out that the other party isn't going to sign for the registered or certified mail, the allotted time to serve the other party has usually expired, which means you will have to go and get a new court date, then start the process of serving the other party all over again. Sheriffs are also not usually a good option, as service of process is not one of their primary job responsibilities, so you can imagine how they feel about having to do it. A good process server will get the other party served in the allotted time and file a proof of service. You can usually add the cost (~$150) to your claim. Recommend contacting the National Association of Professional Process Servers for a referral to one in your area.

Obtaining the Necessary Forms. Check the Internet to see if your small claims court has a website. Many small claims courts now have websites where you can download the appropriate forms directly from the website. If not, and the forms are only available through the courthouse, your process server may be able to obtain the forms for you.

Filing the Necessary Forms. Your professional process server can file the forms for you - no need to orbit parking garages looking for a space and stand in long lines!

Choosing a Court Date. If you are the plaintiff (i.e., the person suing), you will usually be given a choice of court dates when you file your complaint. We recommend choosing one that is convenient for you, but likely to be inconvenient for the defendant, such as a Monday morning.

Pro Tem Judges. In some small claims courts, you have the option of permitting your case to be heard by a pro tem judge (i.e., not a real judge). Recommend against this option, even if it means your court date will be delayed, as you want your case to be heard by an experienced and qualified judge.

Presenting Your Case. You will have approximately three minutes (literally) to present your side of the case. Because you will have such a short amount of time to make your point, you want to make sure that you can state your case in a clear and concise fashion that makes sense. Recommend practicing out loud to a friend or family member who is (a) not a horse person and (b) not intimately familiar with the case already. If their eyes glaze over while you are talking, you need to improve your delivery. Remember that the judge has likely never even seen a horse up close, so won't know "technical" terms such as "mare" and "gelding."

Evidence. Small claims court is very lax about civil procedure, which means that the judge can consider evidence that wouldn't be admissible in regular civil court. Be sure to bring all documents with you, and have them well-organized so that you can put your hands on a document immediately if the judge requests it. Do not be surprised if the judge does not want to see ANY documents, though - their goal is generally to dispose of cases as efficiently as possible.

Witnesses. Although small claims courts typically allow notarized statements, live witnesses are almost always more convincing. Make sure that your witness knows how to state the relevant information clearly and concisely - remember that you will only have about three minutes, TOTAL. You can usually subpoena the testimony of reluctant witnesses.

What You Can Expect to Receive if You Win. Small claims judgments are almost always limited to money, which means you cannot expect the court to order the other side to do anything, such as give you possession of a horse.

What Happens if the Other Side Doesn't Show Up? Typically, you win by default. However, the other side may have a certain amount of time to appeal the default judgment and get a new court date.

Collecting Judgments.
The defendant typically has 30 days to pay a judgment. After that, you can petition the court to allow you access to different types of collection methods. If the defendant has a job, we recommend garnishing their wages, as the employer is legally required to comply with a garnishment order. Second best is garnishing a defendant's bank account and third best is placing a lien on the defendant's house.

Top 5 Small Claims Mistakes
  1. Not timely and properly serving the other side.
  2. Not correctly and timely filing the proof of service.
  3. Rambling on and on at the hearing, and worse, breaking down in tears, making yourself (and your case) look irrational.
  4. Bringing "witnesses" with you to court who are not directly relevant to the case.
  5. Wasting the judge's time by not being organized and prepared. Judges are human beings and courtesy and preparation matter.

3 comments:

heather said...

Hi, Do I have a potential case in small claims court? The training faciity I have my horse at has been charging me for unnecessary items, ex: body clipping, leg clipping. These items and others were not mentioned in our boarding contract and I do not feel I should have to pay them. According to the stables, I owe over $2000 in such charges. They are enforcing their lien rights on my horse; I have not access to the horse-she is chained into her stall. I'm trying to sell the horse, but they are not allowing me to view the horse while she out of her stall, fearing that I may run away with the horse! I was just wondering if I could sue for breach of contract and their blocking the sale of the horse. She is worth much more than the balance owed and I feel it is more of a tactic for them to get their hands on a really nice horse for not a lot of money.

Rachel McCart, Equine Legal Solutions said...

Hi, Heather. I see that you are scheduled for a free phone consultations. Other readers with horse-related legal issues are welcome to call for free consults as well - here is more information:
http://www.equinelegalsolutions.com/consultations.html

lauragpaints said...

I was wondering what type of case should I file. I have some borders in which I have liens on their horses. I have been very patient. Last night while I was at work. They came to my home and removed one of the horses. They committed a misdemenor. The sherrif could not do anything since I was not there. These people knew I was at work. They even called the sherrif's office to tell them that they had removed the horse and were enroute to pay me. But they brought me less than half of what they owe. I was informed that I can pursue a criminal case at a later time. My fiance was home at the time and it was not here-say that they couldnt remove the horse. It was first hand knowledge. Please let me know what you think. You can contact me at lauragpaints@yahoo.com