• Jonathan Baner

Small claims - a Defendant's perspective

Updated: Dec 20, 2020

So, you have been sued in small claims? Let us provide some guidance


This article is focused on a defendant's perspective of small claims in Washington State. Other articles we have written about small claims include:

  1. Plaintiff side information is here.

  2. General information about small claims is here.


It's more difficult, but only one arm gets tired.

First, the good news

You are not allowed to have an attorney represent you in small claims court. This means you do not have to start the sometimes difficult task of finding one to help you.


First (also), the bad news

You are not allowed to have an attorney represent you in small claims court. This means that it is up to you to be prepared with your law and evidence suitable to defend yourself. It also means that if you have any counterclaims that you may be required to bring them yourself. Under various circumstances it is not only possible but advisable (and sometimes effectively required) to convert the action out of small claims court or to bring a superior court action.


A hopefully helpful example

David (you in this example) tears down Paul's fence. Paul brings an action against David in small claims for the damage to the fence. David, the Defendant, only tore down the fence because it was put in front of his driveway and thus made it impossible to drive home. David wants the judge to prevent future fences. Paul only cares about the damage to the fence. David should bring an action in superior court regarding title to the land where the fence was because small claims cannot determine who owns the land the fence was on. David should also seriously consider hiring an attorney.


How will you know you have been sued?

Unlike normal courts it is acceptable to serve a defendant through the mail with a certified letter and return receipt. Generally, it is never advisable to treat receipt of a summons or notice of claim as ineffective or faulty and you should respond to it accordingly. It is acceptable to contact the court referenced on the documents to confirm any dates. The court's website may have the information, but not all Courts in Washington keep the docket information available online.


What will the procedure leading to trial be?

In most counties a small claims action will have some sort of negotiation process detailed at the small claims court itself or the small claims court website. In the absence of a formal process for settlement the county may have a pre-trial hearing (or similar name) where the parties are obliged to appear and explain to the court some parts of the dispute. At these hearings it is possible (likely) that the court will also require the parties to take the time to try to arrange a settlement. Failure to attend a pre-trial type hearing will generally result in a default judgment (Plaintiff wins) or a dismissal (Defendant wins).


Each small claims court and each judge may set specific requirements relating to exhibits and witnesses, but the process is intended to moderately informal. In many circumstances simply showing up with relevant witnesses and proof will be sufficient.


What will the trial be like?


Informal. And it will be conducted substantially different depending on the judge. The best you can do is try to adapt as quickly as much as possible and listen carefully to the judge's instructions.


As a general matter the trial will proceed with the plaintiff going first. The plaintiff will give a type of introduction as to what the case is about, what evidence the plaintiff will be putting forward, what the Plaintiff is seeking, etc. (an "opening statement"). Then the defendant will give an opening statement if the court permits, or the court may ask that the defendant's statement come later. Witnesses may be permitted to testify, and evidence may also be permitted (e.g. pictures, invoices, etc.).


An opening statement from the defendant is an opportunity to refute the Plaintiff, explain the defendant's perspective, and preview what evidence will come forward in the Defendant's case. It is also possible that the judge does not give either side an opening statement. Listening to the judge's instructions is important as previously mentioned.


The Defense

Again, the Court may not set the hearing up to follow the same formality of 1. Plaintiff goes, Defendant goes, 3. Plaintiff rebuttal, 4. Closing statements. Instead, the court may adopt a variety of different approaches. The procedure should not be a source of concern - do as the Court instructs.


When defending a small claims case the Defendant may not know all of the details of even why he or she is before the court. The original summons/citation to start the lawsuit may have scant details. If the particular court has a pre-trial mediation requirement, then that may be the first time any relevant information becomes available to the Defendant.



Not these elements

Once the details of why the Plaintiff is suing the Defendant can be determined, then it becomes important to think carefully about how both parties would be able to prove the allegations. Sometimes some legal research may be needed to figure out what the Plaintiff must prove. The legal basis of the Plaintiff's case, or the "cause of action", will have certain requirements that must be met called "elements."


Researching in much detail these elements is generally the domain of lawyers and elements can have thousands of exceptions, nuances, caveats, and specific cases as well as their interactions with local, state, or federal laws, regulations, and even constitutions. However, with some effort one can find the overall detail of many causes of action (e.g. breach of contract: offer, acceptance, consideration, breach, and damages may be a wholly sufficient set of elements for some cases).


Further, many things have a degree of obviousness to them. If the Plaintiff claims he paid $5000 for a car to the Defendant, but the Defendant simply took the money and didn't turn over any car it is mostly obvious that the case will center around a few facts. Was there an agreement "$5000 for car" or was that just an idle discussion? Was the $5000 even paid? What if half was paid? How much should someone be entitled to? If half was paid, then should the Defendant have to return the $2500 or should the Plaintiff have to pay $2500 and then the Defendant turn over the car? What if the Defendant already sold the car to someone else?


Whatever the elements or important facts end up being the Defendant needs to then start preparing, in advance, for how to answer those questions. What witnesses might be available that heard the conversation (as an aside hearsay is one of those areas with a seemingly unlimited number of exceptions, caveats, and specific use cases), or pictures that show damage, or bank records that prove a check did not clear. The more neutral the proof that is available, generally, the better.


A quick note on default judgments

A default judgment is a judgment. However, many small claims courts in Washington State have formal and informal rules to set aside a judgment obtained against a defendant as a result of his or her failure to attend the hearing. Courts are designed to


Quick tips on courtroom decorum:

  1. The judge is, unless specifically told otherwise, addressed as "your honor."

  2. Dress appropriately. This means that your attire shows the Court that you respect the process and the people involved. Men, wear a suite and tie if you have one that fits. Business formal. Remove your hat.

  3. Try to arrange childcare if possible. Courtrooms are not exciting for small children, and often involve a great deal of being expected to wait quietly.

  4. If the hearing is conducted via remote video (such as Zoom), then see point #2 above just the same.

  5. Silence your phone and don't play with it. If another hearing happens before yours, then it is an excellent opportunity to observe and learn.



Resources


NOTHING ON THIS IS INTENDED TO BE LEGAL ADVICE. This is an attempt to provide general legal information. If you need legal advice you should consult with an attorney directly about your specific legal need. We cannot directly represent individuals in small claims court, but can assist in compiling what you will need specific to your case in some circumstances.

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