SMALL CLAIMS COURT

SMALL CLAIMS COURT

Small claims court is a local court where you can go to sue a person who
has caused you damage. In a few areas of the country this court is
called by other names such as "justice" court or "pro se" court.
Wherever you live, one of these courts should be available to you.

The hallmark of small claims court is that it's cheap and easy to file a
case, and court procedures have been simplified to the point that
attorneys are not necessary and in some states not even allowed. The
hearing before the judge, magistrate or commissioner (sometimes a
volunteer lawyer) usually happens quickly and the decision is made on
the spot or in a few days.

The amount you can sue for is limited, usually to $2,000 to $5,000. The
chart below lists the limits for every state. These limits increase
regularly, so double check the amount with the court clerk if you decide
to use this court.

You may well want to use small claims court even if your losses are
higher than the amount you can sue for, because of the attorney fees and
the enormous amount of time required to use regular court. For example,
if you have an $6,000 claim and a lawyer will take a third of what you
win as a fee, you could use a small claims court with a limit of $3,000
and still come out ahead, once the delay and expenses are figured in.

Let's take an example of a simple neighbor dispute and follow it through
the small claims court process.

In his back yard, Steve has a spreading black walnut tree of which he is
very proud. Ralph, who lives next door, does nothing but gripe about the
tree: too many leaves, too much shade and the tree kills his flowers.
One day Steve comes home and discovers that the tree has been cut down.
Sally, his neighbor across the street, tells him that she saw Ralph
doing the cutting and assumed he had permission. Steve takes photos of
the damage and notifies the police and his insurance company. The
insurance company informs him that his policy doesn't cover damage to
trees. Steve calls a local nursery and learns that they can put in a
good sized but smaller tree of a different kind for $900. He learns to
his disappointment that he can't have another black walnut tree because
a local ordinance has declared them harmful and prohibits planting new
ones. The cost of removing the old stump will be an extra $200. He
obtains a written estimate from the nursery.

The next step for Steve is a trip to the law library, where he looks up
his state statutes on trees. He finds that under his state law, a person
who willfully cuts down another's tree is liable to the owner for triple
the amount of damages. He makes copies of the statute and writes this
letter to Ralph:

Dear Ralph,

Last Thursday, October 2, 19__, you deliberately and without permission
cut down my black walnut tree. Instead of trying to resolve any problems
you had with the tree in other ways, you waited until I was not at home,
deliberately trespassed on my property and destroyed the tree.

I am enclosing the state law concerning your action and an estimate of
my repair and the replacement cost of a smaller tree. I will never be
able to have another black walnut tree.

As you can see, my actual damage is $1100. The law says that you owe me
triple this amount or $3300. I demand that you pay this amount to me
immediately or I will pursue legal action.

Yours truly,

Steve Shapiro

Ralph does not reply. Steve knows from doing research that because the
tree can't really be replaced, he could use regular court and base his
losses instead on the diminished value of his entire property. (See
Chapter 1.) This would put his damages as high as $5,000 or $6,000. But
he also knows that a lawyer may charge a third of the money award as a
fee and that the case could take about two years.

In Steve's state, the small claims court limit is $3,000. What he really
wants is a good-sized new tree and he wants it now. He considers the
lawyer's fees and the time it would take to use regular court. He
decides to do it himself, use small claims court and ask for the limit--
$3,000. He proceeds to the small claims clerk, fills out the papers and
pays a small filing fee. A hearing is scheduled within three weeks.

Steve sits down and writes out:

 * what happened
 * what the law is
 * how much money he should be paid and why.

He gathers the few documents he will want to use: the police report, the
pictures, the estimate, a copy of the statute and a copy of his letter
to Ralph. He calls Sally and gets her to agree to go to court with him
and testify. He makes a few notes on a card so he won't forget anything.

That week, Steve goes down to the small claims court for a few hours and
watches some actual cases, learning what to expect and how to proceed.
Now he's ready.

SMALL CLAIMS COURT POINTERS

 * Be organized
 * Know the law
 * Be brief
 * Be polite
 * Be comfortable.

Go down to court a few days before your hearing and watch the
proceedings so you will know what happens.

THE HEARING

Clerk: The next case is Steven Shapiro vs. Ralph Rogers. Please step
forward.

Judge: Good morning. Mr. Shapiro, will you please begin?

Steve: Your Honor, on October 2, my neighbor Mr. Rogers cut down my
black walnut tree in my back yard. He did this deliberately and without
my permission. Here is a picture of the tree that he cut (hands the
judge the picture). I asked Mr. Rogers to pay me for the damage he
caused and he did not respond (hands the judge a copy of the letter,
which the judge reads).

Judge: Go on, Mr. Shapiro.

Steve: Here is the estimate from a nursery for $1100 for removing the
stump and replacing the tree with a smaller tree of a different kind
(hands the judge the estimate).

I am asking for $3,000 because our state statute provides for me to
receive triple the amount of my damages (hands the statute to the
judge).

Judge: Mr. Shapiro, how do you know Mr. Rogers was the one who cut down
the tree?

Steve: Your honor, this is Sally Smith, who saw what happened.

Judge: Ms. Smith?

Sally: Your honor, I saw Mr. Rogers cut down Mr. Shapiro's black walnut
tree, the one in the picture.

Judge: Thank you. Mr. Rogers, what do you have to say about this?

Ralph: Your honor, the tree was an absolute nuisance. The leaves and
sticks were all over my yard and the tree poisoned my flowers. Black
walnut trees are so harmful that they have been outlawed in this town
(hands a copy of the local ordinance to the judge). I complained several
times to Mr. Shapiro and he did nothing about it. The tree was an
illegal tree and I was within my rights.

Judge: Well, Mr. Rogers, this local ordinance prohibits planting any new
black walnut trees. This tree was legal when it was planted so the fact
that black walnuts can't be planted now isn't relevant. Under the laws
of this state, any limbs that were hanging over your own property and
bothering you were a nuisance and you had the right to cut them back to
the property line. But you did not have a right to go over and cut down
the tree. Did you cut it down?

Ralph: Yes I did, and I didn't think I was doing anything wrong by
taking the law into my own hands. At least the thing is gone and I can
enjoy one autumn without all those leaves and grow my flowers.

Judge: Thank you. You will get my decision in a few days by mail.

The decision was for Ralph to pay Steve $3,000.

Some of you are thinking that Steve should have had Ralph arrested and
thrown into jail. In some states this would have indeed been an option.
If you think a neighbor has committed a crime, you can notify the
police. They will decide if the neighbor can be charged.
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From 'Neighbor Law: Fences, Trees, Boundaries and Noise'
  by Attorney Cora Jordan
  Copyright (c)  1994 Nolo Press
[We strongly urge you to buy this and other Nolo Products!
  Call them at 1-800-992-6656 to order. - 'LLL Staff]

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