SUING IN SMALL CLAIMS COURT
I was asked to write this as a public service for the folks in Lake County, Illinois.
Sometimes you want to sue someone, but the amount is too small to make it economical to hire a lawyer. The Small Claims Court is available for disputes up to $10,000.
The most common types of disputes involve home repairs, auto repairs, small debts, etc.
The important point here is you don't need a lawyer to file suit or defend in small claims court. The exception is if you are suing or defending on behalf of a corporation, you can't represent the corporation unless you're a lawyer.
To file suit without a lawyer, in Lake County, go to the Clerk of Circuit Court in Waukegan and obtain the forms. The Clerk will give you a pro se booklet, which will illustrate the procedure and show how the forms are to be completed without a lawyer's help. Pro se is not to be confused with pro bono, which means you're a fan of that U-2 guy. On the Complaint form, you must describe in general terms why you think the Defendant owes you money. If there is a contract or promissory note relating to the dispute, you should attach a copy of that document. You sign the Complaint and file it with the Clerk. There is a filing fee which is based on the amount of the suit--generally it runs between $100 and $200. If you win the case, the Defendant must reimburse you for the court costs.
If you can show that you are indigent (we know you're indignant), the court has authority to waive the filing fees. For example, if you are on public aid or food stamps, you probably qualify. If you claim to be indigent, but you're really not...well let's not go there.
You must fill out a summons form, in which you choose the next court date, which the Clerk will sign. After filing the suit, you must serve the summons and complaint on the Defendant. Normally, you do that by delivering the papers to the Sheriff who, for a fee based on distance, will serve them on the Defendant. You must give the Sheriff the address of the Defendant. The Sheriff will not locate him for you. Because it's a civil case, there are no Carmen Miranda warnings.
If the Defendant lives in another county, you would deliver the papers to the Sheriff in that other county, along with the fee.
If the Sheriff is unable to find the Defendant, the Judge will continue the case, but the court will have to issue another summons, called an alias summons.
Keep in mind that some Defendants are professional deadbeats who will make every effort to avoid being served. There was a 2002 movie, Serving Sara, where process server Matthew Perry attempts to serve the elusive Elizabeth Hurley with divorce papers. The rival process server was Vincent Pastore, formerly of the Sopranos. The movie is definitely worth seeing, just because of Elizabeth Hurley. However, when they were giving out Oscars, they must have overlooked this movie.
If you can locate the Defendant and serve him, he will have to file an appearance by the Return Date, which is the date you chose when you filed the lawsuit. If he does not appear, you can obtain a judgment from the Judge and then proceed to collect from the Defendant. If he does appear, the trial is generally two weeks later, and you and the Defendant will tell your stories to the Judge who will decide who wins. You don't have to come up with Perry Mason stuff like "if the glove doesn't fit, you must acquit". Just give a straight and honest assessment of the facts.
If the Judge rules in your favor, you are allowed to take steps to collect the money from the Defendant. Hopefully, he will pay voluntarily. If not, you can garnish his bank account if he has one, or garnish his wages if he has a job. This can be a long and tedious process.
Once again, if you have a lawyer, legal fees to collect the judgment could cost more than the judgment amount. If you're on your own, there could be much time involved. The Clerk has the proper forms, but you may need to drag the guy into court to make a sworn statement of his assets under oath. That is called a Citation to Discover Asets. If the Defendant doesn't show in court after being served with that Citation, the Sheriff can do a body attachment (same as an arrest). The court will try to help, but won't give you legal advice. You must do the legwork yourself.
KENNETH SUSKIN
Sometimes you want to sue someone, but the amount is too small to make it economical to hire a lawyer. The Small Claims Court is available for disputes up to $10,000.
The most common types of disputes involve home repairs, auto repairs, small debts, etc.
The important point here is you don't need a lawyer to file suit or defend in small claims court. The exception is if you are suing or defending on behalf of a corporation, you can't represent the corporation unless you're a lawyer.
To file suit without a lawyer, in Lake County, go to the Clerk of Circuit Court in Waukegan and obtain the forms. The Clerk will give you a pro se booklet, which will illustrate the procedure and show how the forms are to be completed without a lawyer's help. Pro se is not to be confused with pro bono, which means you're a fan of that U-2 guy. On the Complaint form, you must describe in general terms why you think the Defendant owes you money. If there is a contract or promissory note relating to the dispute, you should attach a copy of that document. You sign the Complaint and file it with the Clerk. There is a filing fee which is based on the amount of the suit--generally it runs between $100 and $200. If you win the case, the Defendant must reimburse you for the court costs.
If you can show that you are indigent (we know you're indignant), the court has authority to waive the filing fees. For example, if you are on public aid or food stamps, you probably qualify. If you claim to be indigent, but you're really not...well let's not go there.
You must fill out a summons form, in which you choose the next court date, which the Clerk will sign. After filing the suit, you must serve the summons and complaint on the Defendant. Normally, you do that by delivering the papers to the Sheriff who, for a fee based on distance, will serve them on the Defendant. You must give the Sheriff the address of the Defendant. The Sheriff will not locate him for you. Because it's a civil case, there are no Carmen Miranda warnings.
If the Defendant lives in another county, you would deliver the papers to the Sheriff in that other county, along with the fee.
If the Sheriff is unable to find the Defendant, the Judge will continue the case, but the court will have to issue another summons, called an alias summons.
Keep in mind that some Defendants are professional deadbeats who will make every effort to avoid being served. There was a 2002 movie, Serving Sara, where process server Matthew Perry attempts to serve the elusive Elizabeth Hurley with divorce papers. The rival process server was Vincent Pastore, formerly of the Sopranos. The movie is definitely worth seeing, just because of Elizabeth Hurley. However, when they were giving out Oscars, they must have overlooked this movie.
If you can locate the Defendant and serve him, he will have to file an appearance by the Return Date, which is the date you chose when you filed the lawsuit. If he does not appear, you can obtain a judgment from the Judge and then proceed to collect from the Defendant. If he does appear, the trial is generally two weeks later, and you and the Defendant will tell your stories to the Judge who will decide who wins. You don't have to come up with Perry Mason stuff like "if the glove doesn't fit, you must acquit". Just give a straight and honest assessment of the facts.
If the Judge rules in your favor, you are allowed to take steps to collect the money from the Defendant. Hopefully, he will pay voluntarily. If not, you can garnish his bank account if he has one, or garnish his wages if he has a job. This can be a long and tedious process.
Once again, if you have a lawyer, legal fees to collect the judgment could cost more than the judgment amount. If you're on your own, there could be much time involved. The Clerk has the proper forms, but you may need to drag the guy into court to make a sworn statement of his assets under oath. That is called a Citation to Discover Asets. If the Defendant doesn't show in court after being served with that Citation, the Sheriff can do a body attachment (same as an arrest). The court will try to help, but won't give you legal advice. You must do the legwork yourself.
KENNETH SUSKIN
Labels: law
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