Plaintiffs and Defendants ... Making the Best of Your Day in Court

While youíre waiting for your hearing date, itís important to prepare your case or defense as thoroughly as you can. Double-check your facts. Ask important witnesses to attend the hearing. Gather all of the evidence you think you may need. Prepare any needed charts or other exhibits. Decide what youíll say to the judge.

Organize your thoughts and evidence to make your claim as easy as possible to understand. Prepare a written outline of the important facts and the points you intend to make to the judge. Try to think of the questions the judge might ask, and of any available evidence that supports your answers and that you can bring to court. Also try to think about what the other party is likely to say, and about what evidence the other party may bring to court.

By thinking ahead, youíll be in a better position to present your case. By presenting your case clearly and in the least amount of time, you will make it easier for the judge to understand your case and make a decision, You can help the judge and also increase your chances of obtaining a favorable decision by being well prepared. Itís also helpful to sit through a small claims court session before the date of the hearing. This will give you first-hand information about how small claims cases are heard in your local court.

On the day of your hearing, schedule enough time to get to the court, allowing for possible transportation or parking delays. Try to arrive early so you can locate the proper courtroom. Then relax, listen for announcements, and think about your case. A list of the dayís small claims court cases, called a ďcourt calendar,Ē is usually posted outside the courtroom. If you donít find your name or case listed on the court calendar, check with the small claims clerk.

If you donít speak English well, and may have difficulty presenting your case in court, itís okay to bring someone who can interpret for you in courtó perhaps an adult relative or friend, but not a party to the action or a witness. Instead of bringing your own interpreter, ask the small claims court clerk for a list of interpreters at least five days before the hearing. Most interpreters charge a fee. If you cannot afford to pay an interpreter, ask the clerk of the court if the court can provide one for free.

Resolving Your Dispute Before the Hearing

For most people, a dispute, especially a lawsuit, is stressful. Be reasonable in your demands to the other party. Keep the lines of communication open. Always leave room for possible compromise and settlement with the other party. Even on the day of your hearing, it is not too late to settle your dispute. Keep in mind that the judge may not see things your way in spite of the strength of your evidence. The judge also may not understand fully the evidence you are presenting, especially if the case is complicated and involves many documents. Going to trial still carries a significant amount of uncertainty, and many small claims litigants have been surprised unpleasantly when they received the judgment in the mail. It may be a good idea for the parties to use the courtís mediation services if they are available. Mediation is a process where both parties have an opportunity to work out an agreement on their own with the assistance of a third party, the mediator. There are no negative legal consequences if the parties cannot reach an agreement in mediation. If you do resolve your case in mediation, the mediator will draft the agreement for you. There is little to lose and much to gain when you attempt to resolve your case in mediation. Many courts have mediators available in the courtroom to assist you and the other party in resolving your dispute. (See "Have You Considered Mediation?".)

If you resolve the problem, itís better to put your settlement agreement in writing than to rely on memory. It should also be signed and dated by each of the parties to the action. It can be handwritten, and should be expressed in language each party can understand. It should describe the arrangements for making payments, and also any related agreements or understandings. If periodic payments will be made, the agreement should state the amount of each payment, the date when each payment is due, and the effect of any late payments. (See "What If You Owe All or Part of the Plaintiff's Claim?".)

If you and the other party resolve the dispute before the hearing date, the plaintiff should dismiss the case by signing and filing a Request for Dismissal (Form CIV 110). Before filing a Request for Dismissal dismissing the case with prejudice, the plaintiff should receive payment in full of the agreed-upon amount in cash. If the settlement amount is paid by check, the plaintiff should wait until the check clears before filing the Request for Dismissal with prejudice.

If you and the other party settle (resolve) the dispute on the day of the hearing, there may not be enough time to dismiss the case by signing and filing a Request for Dismissal (Form CIV-110). In that event, you and the other party should attend the hearing and, when your case is called, inform the judge that you have settled the dispute. The judge has several options: The judge may (1) give you the additional time you need to sign and file a Request for Dismissal dismissing the case with prejudice before leaving court that day; (2) order a dismissal of the case without prejudice (meaning that it can be re-filed if the settlement amount is not paid); (3) postpone the hearing for a short period to enable the defendant to pay the claim, or (4) include the terms of the agreement in a regular court judgment. Once the defendant has paid and the plaintiff has received the agreed-upon amount, the plaintiff should sign and file a Request for Dismissal (Form CIV-110) dismissing the case with prejudice (meaning that the claim can never be re-filed).

If the dispute is resolved and the case is dismissed without prejudice (alternative (2) above), no judgment will appear on a defendantís credit report ó a desirable result from the defendantís standpoint. If the defendant violates the settlement agreement, for example by missing payments that the defendant has agreed to make, the plaintiff may re-file the case and submit the settlement agreement as evidence that the defendant agreed to pay the amount set forth in the agreementóa desirable result from the plaintiff ís standpoint. In that situation, the plaintiff ordinarily would not need to prove the original basis for the amount owed, but could rely on the settlement agreement to prove the amount owing.

Gathering the Documents You Need

Prepare for the hearing by gathering any evidence that will help the judge understand the case. Your evidence may include any written contract, receipt, letters, written estimates, repair orders, photographs, canceled checks, account books, advertisements, warranties, service contracts, or other documents.

To protect privacy interests, you should only display the last four digits of Social Security Numbers on financial documents. You may bring the originals or copies of your evidence to trial, but do not submit your originals for the judge to keep. Some courts will throw away your evidence once the judge has rendered a decision in the case. Always give copies of your evidence to the judge, or if you must show the judge the originals of your evidence, make sure you ask for that piece of evidence back before you leave the courtroom. If the judge must keep your evidence and a copy cannot be made, ask the judge to instruct the clerks on how and when to return the evidence to you. In property damage cases, some courts ask the plaintiff to provide two or three written repair cost estimates to show the reasonableness of the claim. Make a map, diagram, or drawing if it will help you explain your case more easily and quickly.

Make two copies of any document you intend to give the judge. The judge may ask you to give one copy to the other party and may place one copy in the courtís file. The court will usually allow you to keep your original.

At small claims court hearings, judges take an active role and ask any questions that will help them understand the case. Small claims judges can also consider information and evidence that would not be permitted in other courts. Therefore, donít hesitate to bring any items or documents that you believe may help the judge understand the case.

Arranging for Your Witnesses

In most small claims cases, you or the other party can easily provide all the information and documents the judge will need in order to understand and decide the dispute.

Sometimes, however, youíll need to present information that can be provided only by a witness. The witness may support your version of an event, and may be the only person who has first-hand knowledge about it. If you believe that testimony from a particular witness is essential to your claim or defense, you should make a special effort to have the witness attend the hearing.

If a witness canít attend the hearing, you can ask the witness to write and sign a statement called a ďdeclarationĒ for submission to the court. This statement should include everything that the witness would like to tell the judge about your claim or defense. At the end of the statement, the witness should write, ďI declare under penalty of perjury under the laws of the State of California that the above is true and correct., and that this declaration was signed on [date] at [location]óe.g., Sacramento, California.Ē The witness should then date and sign the statement, and write his or her city and telephone number at the time of signing.

If the witness isnít living in California, the statement should be signed before a notary public. The witness should also include a telephone number (and perhaps an e-mail address) in case the judge needs to contact the witness. The judge isnít always required to accept a written statement, so itís best to have an important witness come to the hearing. Since the judge may also want to ask the witness questions, a witness should attend if possible.

You also may want to consult with the small claims clerk or small claims adviser about whether the court will allow your witness to testify by telephone. Some, but not all, small claims judges will allow a witness, especially one who lives a long distance from court, or who will not be available for the hearing, to testify by telephone. Itís a good idea to present a letter to the court from the witness explaining why the witness canít appear in person at the hearing. Even if the court generally permits telephone testimony from witnesses, you should ask for permission from the court in advance of the hearing.

Always talk to a witness before the hearing. The witness may not see or interpret the facts in the same way that you do, or may have forgotten the key points. Also, if the witness is hostile to you, he or she may do you more harm than good.

If your case involves a technical issue, such as the reason that a car or TV isnít operating properly, you may need to consult an expert. You can arrange for the expert to attend the hearing as a witness, or you can ask the expert to prepare and sign a written statement (declaration), as described above. The judge also can appoint or consult with an expert. You probably wonít be reimbursed for expert witness fees, but you still might want to hire an expert at your own expense.

If your witness wonít voluntarily come to court or wonít provide some documents you need to present your case, you can subpoena the witness. At your request, the small claims court will issue a Small Claims Subpoena for Small Claims Subpoena for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration (Form SC-107)óa court order that requires the person named in the order and served with a copy of it to come to court to testify as a witnesses.

Itís usually not a good idea to force somebody to testify on your behalf, since this person probably wonít make a good witness, or may even testify against you. However, a subpoena may be needed to enable a witness to obtain permission from his or her employer to be absent from work to testify in court, or it may be needed to provide documents whose disclosure might otherwise violate someoneís privacy rights.

You can obtain a Small Claims Subpoena for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration (Form SC-107) from the small claims clerk or in some counties from a small claims adviser, or from the Judicial Council's Web site (www.courtinfo. ca.gov). After you have entered the requested information in the subpoena, the subpoena is issued by the clerk of the court and is a court order. Since the court may reject and refuse to issue a subpoena that asks for more than is genuinely needed or reasonable, itís important to limit your request to those documents that you know you really need and that the party who is served with the subpoena can readily obtain.

You then need to arrange to serve or arrange for someone else to serve a copy of the subpoena on the witness. Unlike the plaintiff ís claim form (Form SC-100), you or anyone else can deliver a copy of the subpoena to the witness. However, that person should be a responsible adult that you can trust to serve the court papers properly. After giving the witness a copy of the subpoena, the person who delivered the subpoena must complete and sign the Proof of Service (Small Claims) that is printed on the back of the form.

A witness is entitled by law to ask for witness fees of $35 per day plus 20 cents per mile each way. Witness fees for law enforcement officers and government employees are higher. If a witness asks for fees, the witness need not appear in court unless the required fees are paid to the witness. The person who serves the subpoena therefore should be prepared to pay the fees at the time of service in the event that fees are requested. If the witness doesnít ask for fees, you donít need to offer them. If fees are requested and paid, be sure to obtain and retain a receipt, which you will need so that you can claim and recover the expense as costs in the event you prevail.

If youíd like the witness to bring documents to the hearing, youíll need to check the box requesting the witness to do so. Youíll have to fill out the declaration form, describing exactly which documents or papers you need and the reasons you need them to support your claim. The subpoena form gives you two options: You can require the witness to bring the documents to court and testify as a witness, or merely to deliver the documents that you requested to the court. (You need not require the witness to appear at the hearing.)

After the subpoena is served, the original subpoena (with the completed and signed Proof of Service on the back of the form) must be filed with the small claims clerk before the hearing date.

Hearing Before a Temporary Judge

Most small claims courts rely on temporary judges (sometimes pro tem judges) to hear and decide small claims court cases. A temporary judge is an attorney who has been licensed for a minimum of 10 years to practice law in California and who volunteers to assist the court by hearing certain kinds of cases. The temporary judge is required to complete a training program for small claims court judges before hearing cases.

On the day of the hearing, you will be invited to consent (or stipulate) that a temporary judge, rather than a regular judge or a court commissioner, may hear and decide your case. Before a temporary judge may hear a case, all parties who appear at the hearing must give their consent. Some courts require the parties to sign a written consent form. You are not obligated to consent to a temporary judge. You have a right to have a regular judge or a court commissioner hear your case. A temporary judge cannot pressure or threaten you into consenting to him or her hearing your case. If either party to a dispute doesnít consent, the clerk may find it necessary to reschedule the hearing to a later date or time when a regular judge or court commissioner is available.

If youíre given the option of a hearing by a temporary judge, you should consider several factors:

  • Many small claims court calendars are overcrowded, so itís possible that your hearing will be held on the scheduled date only if the hearing is conducted by a temporary judge.
  • Attorneys who serve as temporary judges are expected to have basic knowledge about consumer and small claims court law.
  • All courts must provide special training programs for their temporary judges.

Presenting Your Claim or Defense

Before the hearing, the courtroom procedures are explained either by the judge or some other court officer. Many courtrooms now use videotapes to explain these procedures. The court will then call roll to see which plaintiffs and defendants are present for their hearings. Listen carefully so that youíll know what to do. Everyone who will testify in a hearing will be asked to take an oath promising to tell the truth.

The court will then hear each case. Usually, cases in which the defendant isnít present are heard first. While evidence is still presented in those cases, they take less time because there is no opposition. As you listen to the other cases, youíll learn more about how to present your own claim or defense. Cases are not always called in the order listed on the court calendar, so be sure to stay in the courtroom.

When the judge is ready to hear your case, the clerk or judge will call the names of all plaintiffs and defendants in the case. You, the other parties, and any witnesses, should then go forward to the table in front of the judge. Judges usually ask the plaintiff to tell his or her side first, and then the defendant may speak. Some judges may begin by asking questions of each party to learn more about the facts, or to cover areas the judge knows are important.

Usually, youíll have only a few minutes to explain your side of the dispute and answer questions, so be sure to present your most important points first. You can usually use a written outline or notes, but itís better not to read a prepared statement. Be sure to have all your evidence and any important documents with you. Tell the judge that you have them, and ask the clerk or other court officer to give them to the judge. If you obtain the judgeís permission, you may give the documents directly to the judge. If the judge needs to keep your evidence for review, ask how and when youíll get the items back.

Telling your story to a judge isnít like telling a story to a friend. When you tell a story to a friend, you usually start from the beginning, give all the details, build some suspense, and then finish with an ending. In small claims court, you first want to implant in the mind of the judge the primary issue or issues in your case.

Many judges ask for a brief overview of the case. If the defendant in an auto accident case has admitted that the accident was his or her fault, tell that to the judge, and say that the issue is the amount of damages, and not liability. In a contractor case, the plaintiff might say, ďYour Honor, I am suing the defendant roofing contractor for $1,000 because the work he did on my roof was defective, and it cost me $1,000 to get it right.Ē In an auto repair case, the plaintiff might say, ďYour Honor, Iím suing the defendant auto mechanic for $600 because he didnít fix a number of things on my car for which he charged me, and I have a report from the Bureau of Automotive Repair that explains what he did wrong.Ē By providing this overview, you give the judge some guidance on what facts he or she should focus on. However, if you start out your auto accident case in a narrative style, the judge wonít learn about the issues of your case until later.

Some judges may investigate the case after learning relevant facts. For example, a judge might ask the Bureau of Automotive Repair to investigate allegations from a consumer that an auto repair shop performed fraudulent work. Some judges will consult with contractors whom they know and trust to obtain advice in a case involving another contractor. If your case involves shoddy work by an auto paint shop, you may want to bring your car to the courthouse parking lot and ask the judge to look at it. A judge might visit the location where an auto accident occurred. However, itís up to the judge to determine whether an investigation is appropriate.

Be brief in making your points. Do your best to be objective, unemotional, polite, and respectful of the other party and the judge. The judge will be interested only in hearing the facts of your dispute. Donít raise your voice or make insulting remarks about the other party or any witness, no matter how angry you may become. During the hearing, speak to the judge and not to the other party. Most importantly, be truthful in everything you say.

Answer the judgeís questions thoughtfully. If you donít understand a question, politely ask the judge to explain the question or to ask it in another way. Remember, too, that the judge is trying to apply laws that you might not know about. Therefore, donít get angry if the questions are on points that you donít consider important. The judgeís questions may be of great importance to your case.

Since the law requires that any award of money be ďreasonableĒ in amount, the judge will want to know exactly how the plaintiff decided on the amount claimed. A plaintiff must be ready to show how this figure was determined. If interest is also claimed, the plaintiff should be prepared to show exactly how it was calculated. If the interest calculation is complicated, it may be helpful to provide a written summary. In all cases, it is beneficial to provide the judge with a written itemization or calculation of your damages, if the information is not already included in your claim form.

If the defendant believes that the amount claimed by the plaintiff is excessive or improper, the defendant should be ready to explain why this might be so. If the defendant knows that all or any part of the amount claimed is owed to the plaintiff, itís okay to tell the judge that too. The judge may agree about the amount that is owed, or the judge may authorize an installment payment plan that the defendant can manage.

While the judge is asking the other party to explain his or her side of the dispute, donít argue or interrupt, even if you feel that whatís being said isnít truthful or accurate. Make a note to yourself as a reminder. The judge will usually give you enough time to reply.

Asking for Court Costs

At the hearing, if you are the one suing, you should ask the judge to award your court costs if you win. Costs are out-of-pocket fees and charges a party pays to file and present a lawsuit. If you are awarded costs, the award is included in the judgment against the losing party. In most cases, costs are awarded to the person who brought the suit and won. However, it still be may be a good idea to ask for your court costs at the end of the hearing. Defendants cannot be awarded court costs, since they do not pay a court fee to appear in court. On the other hand, if the defendant has filed a counter-claim that was heard at the hearing, the defendant could ask for their court costs for the filing of their counter-claim.

Be sure to keep receipts for your filing fees and other out-of-pocket costs. Only some kinds of costs (called ďallowable costsĒ) can be recovered from the losing party but others canít. Costs that may be recovered include amounts you have paid for court filing fees; expenses of service of process (including the cost of locating the defendant for service, if reasonable); witness fees (but generally not for expert witnesses); and fees for service of subpoenas (of either witnesses or documents). Since other kinds of out-of-pocket expenses might be awarded at the judgeís discretion, bring your receipts to the hearing. However, expenses other than those listed above are not ordinarily awarded.

If you have filed more than 12 cases during the preceding 12 months, you can claim as court costs only the portion of the court filing fee that you would have had to pay if you had filed 12 or fewer claims.