How To File A Lawsuit

Consumerist empowers consumers to take on bad companies, but sometimes even the negative PR that Consumerist can bring to bear is not enough to persuade companies to behave. When that happens, you might have to sue in order to get what you want. Here is a brief guide to your options when you decide you need to escalate your complaint to the courts.

A “small claim” is a dispute about a small amount of money. For example, if the electronics store broke your MP3 player when you took it in for service, you have a small claim.

Small claims court is pretty much what you see on daytime courtroom dramas like Judge Judy, but without the sass. Lawyers rarely appear, and the money in dispute is usually fairly small (although it the upper limit is usually several thousand dollars).

Most states make it easy to start a lawsuit in small claims court. For example, in Minnesota, you can download forms and instructions from the courts’ website. The court clerks are helpful, and some counties even have self-help centers that can coach plaintiffs through the process.

If you have a small claim and want to file a lawsuit yourself, find your state or county small claims court. Look for forms, instructions, and self-help resources.

Some important things to remember:

  • Include all the money you want in your statement of claim;
  • Gather up all your documentation, and bring an extra copy to court to share with the judge and/or the defendant;
  • Wear a suit, because the other guy probably will;
  • Be ready and willing to settle, but do not feel like you have to settle;
  • Stay calm, especially in front of the judge or referee, because the party that gets upset is usually the party that loses; and
  • At the hearing, focus on why they owe you money; don’t digress, Boston-Legal style, into a catalog of the company’s human rights abuses.

Things that are not small claims

Many consumer protection laws provide for attorney fees, which means the person or company you sue will have to pay your lawyer, so you don’t have to. Not quite a free lawyer, but it means you should not have to pay your lawyer unless they get money for you. In many cases, you will get more money if you hire a lawyer than if you represent yourself.

Here are a few things you should talk about with a consumer rights lawyer instead of bringing a lawsuit yourself:

  • Debt collection abuse and harassment;
  • Credit report errors;
  • Credit, housing, or other forms of discrimination;
  • Problems with credit repair companies;

To find a consumer lawyer, the best place to start looking is the consumer lawyer database at the National Association of Consumer Advocates.

Get going

The statute of limitations may be as short as one year, so get on it!

Remember, filing a lawsuit is serious business, even in small claims court. Frivolous lawsuits will get tossed, and if you file one, you may even get sanctioned. But there are times where you are right, the company is wrong, and the only way to get what you deserve is to open up your closet and put on your lawsuit.

Sam Glover is a consumer rights lawyer, enemy of shady debt collectors, previous Consumerist contributor, and writes the Caveat Emptor blog. His column appears the first Monday of every month on Consumerist.

(Illustration: Leo Espinosa)

Comments

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  1. snoop-blog says:

    One day I hope to be a smarty-pants lawyer like Sam. Then the world will BOW TO ME!!! okay that maybe a little too far but who cares, BOW!!! lol.

  2. Problogue says:

    Well said

  3. esd2020 says:

    I successfully sued my scumbag ex-landlord a few years ago.

    The process was pretty painless. I would just add that the court clerk’s office is your best friend. Start there first. They deal with this stuff all day and can help you get all the paperwork ready.

    I’d also add that if/when you do get a court date, bring *everything* you could conceviably need (contracts, cancelled checks, etc). There are no do-overs, so if you forget something, you could be SOL.

  4. Eyebrows McGee (now with double the baby!) says:

    Make sure you check the fees (often available online). I live in a county where filing a small claims case can cost as much as $298 (that’s *way* expensive for small claims, in most places it’s waaaaaaay less), so while the MORAL victory of suing someone over $250 might feel good, the monetary victory is clearly not coming to you in my county. :)

    And YES on the court clerk’s office — they’re very helpful! And YES on bring everything you can imagine needing (preferably well-organized). If you have to serve process, make sure you really understand what, exactly, you need to do.

    And shut the hell up when the judge talks. :)

    Small claims is often “cattle call,” which is where a whole bunch of cases have the same time on the same day, and they just kind of run through them one after another, so be on time, but be prepared to wait. And remember you can always go observe small claims before you file (or before your case is schedule to occur) so you can get an idea of how it goes.

    Some states forbid lawyers in small claims, but some states allow them. Especially when you’re suing a company, know who the company’s allowed to bring — you may be pretty unhappy if you assume this will be quick and easy and discover you’re facing the company’s attack dog lawyer. (I have seen this, where someone files a small small-claims suit and the company sends a ridiculously-expensive lawyer and kicks your claim to regular court in an attempt to get you to drop the case that costs them more than settling would, but presumably they’re making a moral point. Or just didn’t fill their assholery quota yet for the month.)

    • speedwell (propagandist and secular snarkist) says:

      @Eyebrows McGee: The reason they do that is because if they don’t fight everything of that nature, they may lose their right to fight any claim or issue of the same type.

      I once accidentally bounced a check for four dollars because my ex-husband changed banks without telling me. As soon as I found out, I called the store and asked them if they would please waive the fee because it was such a small amount. They said not to worry about paying any of it; they’d just write it off. Later I had a cop show up at my door and haul me down to the jail because the store did not cancel anything at all and didn’t bother notifying me about the fact, either. I was poor, so I got a legal aid lawyer. They sent the lawyer who happened to have been the head of the office and who got mad when she heard what happened to me. I was bailed out on my own recognizance (I wasn’t considered a flight risk over four dollars).

      When court day came, the store sent a fancy lawyer from Corporate, in another state. The judge looked annoyed. Then he asked me to tell my side of the story. I said I was perfectly willing to pay the four dollars I owed, but I thought their fee was ridiculous. The judge said, fine, just do that. The lawyer tried to object and the judge made him shut up. I didn’t have any cash, so my lawyer wrote a check to the clerk and I wrote her one to reimburse her. Heh.

      • mythago says:

        @speedwell: I think you are getting this mixed up with trademark law. A company that doesn’t enforce its trademarks may lose the right to do so; that’s not true of most other areas of law. It’s not the case that BigCo had to send somebody down for your $4 fee lest they never be able to enforce the fee again.

      • hopieam says:

        @speedwell: Thanks for sharing that story. I record all calls where, if someone lies or fails to follow through on a verbal promise, I could get screwed (like going to jail). I wonder if you had recorded the call, if you could sue the store for something. Lawyers?

    • downwithmonstercable says:

      @Eyebrows McGee: Wouldn’t small claims allow you to sue for the costs of bringing the case to court? Since you wouldn’t have had to incur the cost if the defendant had just cooperated, it seems like an unnecessary cost to you that you could sue for.

      • humphrmi says:

        @downwithmonstercable: In my jurisdiction (Cook County, Illinois) – Yes. I’m not sure if that’s universal. So time off from work, filing and process server fees, etc. Also, even if you’re suing Pro Se, you might (and in many cases it would be smart) to consult an attorney before you go to court, on an hourly basis. In my county’s court, if I sue and win, I can recover fees to consult and attorney.

    • TheBursar says:

      @Eyebrows McGee: You should ask for the filing fees as part of the suit.

  5. Marshfield says:

    I just got through with a small claims suit against a contractor we worked for who didn’t pay us. He filed a counter claim. The judge in our case didn’t care to see any physical evidence or documents, the entire case was based on verbal testimony.

    What I can tell you is to be prepared to refute the other side’s arguments, and state your case clearly and concisely. You will get a chance to give rebuttal testimony, don’t pass it up. If their case has holes in it, you may have just one chance to point those out.

    Also, as mentioned above, if you are willing to settle for a bit less, you might consider a negotiated settlement. Many small claims courts have mediators on hand who can help you work out your problem without going before the judge. A mediated settlement has the force of law, and if both parties can agree on a settlement, there is a better chance of actually collecting. Plus the judge may not see things your way and you walk away with nothing.

    I’ve been in small claims a few times.

    Lost two.
    One one, but had to go through garnishment to collect.
    Tried mediation once, made an agreement and then the debtor skipped town.

  6. maztec says:

    I really struggle with this post. I see its point, but if you really want to promote this knowledge, point people to the relevant literature for their state – or direct them on how to find it quickly. But, something overly generic really just .. well, creates a lot of risk.

    And quite frankly, the traditional line (often towed here) to not threaten lawsuits and to actually try to work with it before deciding to file should be emphasized.

    I really, REALLY hate it when I get a client who has watched too much law and order or read too many sites like this and come in screaming, “I WANT TO SUE XYZ AND I WANT TO DO IT NOW!” I almost always end up spending an hour with them explaining why they do NOT want to sue (yet) and helping them figure out alternative methods to work with the company. Half leave, swearing they’re going to find an attorney that will sue (and they probably will), the other half stay. Of the ones that stay, I refuse a lot, but even the ones that are taken in can be frustrating. If a lawyer gives you a deal, “Look, I’ll help you figure this out for $300-$500.” Understand they are giving you a deal. They are probably losing money helping you, but they are being nice, to give you a hand.

    Nothing is worse than the person who paid you $1000, to have you (as you carefully explained) try to get things going without the need of a lawsuit, screaming at you because they feel entitled to that lawsuit. Wait, one thing worse, when they do that and then LOSE their own case that you were helping them with because they would not stop screaming.

    Soon as you scream “SUE!” to a company it buckles down and stops helping you.

    Court of any type is the absolute last place you want to be and depending on who it is against it may still never resolve in anything more than a paper award. Try getting it, hah! Worse than the bloody case itself.

  7. SteveD1of1 says:

    Thanks, Sam for the valuable info. However, it’s one thing to win a small claims lawsuit and another to collect.

    How about a guide to getting the money you’re awarded, but that the lawsuit loser won’t pony up?

    Unlike the court shows, who usually pay their on-air litigants from a fund, real-life small claims court victors often have a hell of a time collecting their judgement.

    What do we do then? Thanks!

    • ToniRockyhorror says:

      @SteveD1of1: You can file an order to garnish wages with an employer of the defendant (or plaintiff), if the person is on some sort of payroll system.

      People should always remember to think about the defendant’s means before they sue them…if a person has no income or savings, any award is moot.

    • Sam Glover says:

      @SteveD1of1: Honestly? No idea. I sue debt collectors; I have never collected myself.

      If I had to collect a judgment, I would try to find a collection lawyer with scruples and pay them to do it.

    • ShadowDancer says:

      @SteveD1of1: excellent question. on behalf of a company i was working for i filed a small claims suit, won the amount being sued for plus court costs and fees. the defendent had brought a check made out in the amount of the amount he was being sued for.

      he told the judge he would pay the balance. never saw a dime!

  8. humphrmi says:

    Another thing to keep in mind (this bit me, although I recovered from it OK): some courts still give the defendant the absolute right to demand a jury trial. And that makes your case much more complicated, because even if you present an airtight argument, if you don’t prepare the appropriate “jury instructions” your case will never go to the jury.

    In my case, I ended up consulting an attorney for some boilerplate contract law jury instructions. I suspect that there are probably better resources online today than when I had to figure this stuff out (eight years ago).

  9. Dryfus Ranon says:

    The Better Business Bureau may be a better route in certain cases. In 84 Pontiac had to buy back a firebird(82, 47k miles) for $500 less than I paid in 81. Cost to me Zippo.
    Earlier this year I filed a complaint with the BBB of Houston TX against Counterforce USA alarm system at 3am. I then informed Counteforce USA of that action. At 9am I recieved an email from Counterforce USA releasing me from their so called contract. My cost Nada.
    And I love all the Law & Order shows as well as The Paper Chase series in the 80′s; based the GM arbitration on one of hose episodes.
    Fortunately I love going to court and representing myself, recieved several tickets since 1986, beat every one of those. Fun Fun Fun BTW the judge knows you’re not a lawyer and treats you accordingly.

  10. ceejeemcbeegee is not here says:

    If I ‘favorite’ this today, will it still be here when this site get’s sold/shut down?

  11. krunkwizard says:

    This article is leaving out a few things.

    If you are suing a company that isnt in your state, or is incorporated/based in another state, you WILL be filing in federal court. This brings in a whole slew of issues, such as:

    Subject Matter Jurisdiction (FRCP 1331), such as a Federal Question
    Diversity of Parties, FRCP 1332. You also need to state a claim that is over 75,000 dollars in damages.

    After that, your pleading standard needs to satisfy FRCP 8, which is a short, plain statement of the facts and why you are entitled to relief. If you dont plead this properly, you will be 12b6′d, then your case will be dismissed.

    This is now not even true, since the court in Bell Atlantic Corp V. Twombly screwed up the old Conley v Gibson standard.

    Good luck! I knew there was a reason i went to law school.

    • scoli83 says:

      @krunkwizard:
      Federal court is an option for diversity cases, not a requirement.

      Federal courts have exclusive jurisdiction for very few types of cases.

      Example:
      I live in TX. I buy a defective iPod from the Dallas Apple store and they refuse to help me. I CAN sue them in Dallas county. However, I can not sue them in Federal court because I do not have a claim that meets the minimum damage requirements.

    • humphrmi says:

      @krunkwizard: Well I wouldn’t agree that if the company is in a different state than your own, you absolutely must sue them in Federal court. You can sue them in their own jurisdiction, if you are willing to travel to that jurisdiction for court appearances and hearings.

      California, for instance, has an online court clerk system. You can file suit and hire the process server online. Then, you schedule your vacation to California to coincide with the court date ;-).

  12. Zeke_D says:

    This is quite an omen, I was trying to figure out how to sue Gateway Computers over a botched repair they are refusing to take care of, and here is this article…

  13. jfischer says:

    krunkwizard said:

    “If you are suing a company that isnt in your state, or is incorporated/based in another state, you WILL be filing in federal court.”

    Dude, don’t make a federal case out of it! ^.^

    One can file a small claims action in the local (state, not federal) court nearest their “place of business”, as this is where the defendant can be LOCALLY served.

    The rule for small claims in most states is that the suit must be filed in the venue most convenient for the defendant. Makes sense, as without this rule, you could sue me from 3,000 miles away, and make my cost of defending myself higher than your claim amount, creating a defacto legalized extortion industry.

  14. RogueWarrior65 says:

    Or you could quite whining and realize that life isn’t fair. IMHO, one of the the most disgusting aspects of American society are the trial lawyers.

    Furthermore, to hear people think so highly of the new Obama administration because “they’re lawyers” is equally disgusting. I want people in positions of authority who are actually capable of being successful in the real world.

    ATTENTION ALL SHIP B PASSENGERS! THIS IS YOUR BOARDING CALL!

  15. Orlin Bowman says:

    If you ever have to take someone to small claims court, this article provides insight and is worth reading. Check the comments too.

  16. Bagumpity says:

    Dangit- I wish I had known about this a year ago. My kid’s college education would be paid for by now. Every debt collector in the country is robo-calling my kid’s cell phone looking for the guy who used to have the same number.

    Now here’s the amazingly stupid part: The original debt came from AT&T Wireless. Yes. You got it. They are calling the number from the account that AT&T Wireless cancelled!

  17. teamplur says:

    1. Have only a cell phone, no land line
    2. Go into debt
    3. Get autodialed from collection
    4. ????
    5. Profit