In this and the next few posts we’ll talk about how to cause the plaintiff as much inconvenience, trouble and expense as possible. In short, we want to make him want to rethingk the wisdom of ever bringing the lawsuit.
The first question for the defendant that we posed in the last post was, do you want to leave the lawsuit where it is or move it?
There may or may not be options.
In this blog we’ll focus on the kind of court it may be in and whether you leave it there, or try to get it transferred to a different court.
If your neighbor is suing you over damage done to his car by a falling branch from your tree, and the amount he is suing you for is much less than the maximum amount for small claims court in your county, then it might seem that there are not many options.
But in the real world of litigation – the stuff that you really need to worry about, it is seldom that simple and there are usually quite a few options from which you can choose.
The first question that comes to mind is why you would bother? After all, a lawsuit is a lawsuit and one court is as good as another.
The answer is twofold.
First, courts are not the same. Different courts offer different advantages and disadvantages.
Second, as we talk about if you’re the plaintiff, carefully choosing the court where a matter will be resolved is fertile ground for tilting the playing field to your advantage and making life as difficult as possible for your opponent.
Once again, for those who have commented to me to the effect of “that sort of approach is not ethical”, or “that’s not fair”, please spare me. You’re reading the wrong blog!
Especially if you’re the defendant, you did not ask for this lawsuit. Second, ethics apply to lawyers. They will not hesitate to use their superior experience and familiarity of the system against you. If you fail to use the tools at your disposal, you’re just being foolish and short-sighted. The object of a lawsuit, especially if you’re being sued is to win. This is not a game. Somebody is trying to do you harm via the legal system. You get to fight back.
So having said that, let’s look at some factors.
Today we’re going to look at the kind of court that you have been sued in.
Many states have what are referred to as “small claims” courts. They may actually be referred to by different names… “magistrate’s court, justice court”, “municipal court”. These courts have limited jurisdiction amounts usually in the five to ten thousand dollar range.
The more important thing is that these courts are usually intended for people to appear without attorneys, and some, do not even allow attorneys to participate. They often have abbreviated and simplified rules of procedure, evidence rules are less formal, and the court room procedures are simpler.
The key here is that if you are able to do the research and get the information you need, whether it be from Be Your Own Lawyer or elsewhere, why would you want to let the plaintiff, who is suing you get off easily and simply? If you’re prepared, what might seem a little complicated to you is going to be overwhelming to him!
He’s filed this lawsuit, filing fee around $50 or so, possibly with a handwritten complaint, hoping to simply waltz into court, tell his story and have his problem straightened out.
Why would you want to let him do that? You didn’t ask for this lawsuit, so why make it easy on him?
You’ve got the resources and knowledge to handle this in a higher more complex court. This is definitely an option, if available that you want to pursue because it gets the plaintiff out of the easy, low cost environment of the small claims court.
If you are able to get a case removed from small claims court to a court of general jurisdiction, the plaintiff is confronted with either getting up to speed on all of the law and procedures very quickly, or going out and hiring an attorney.
Congratulations! You’ve just changed the whole ball game.
You’ve taken the plaintiff from a posture where he spends only a few dollars for a quick and easy resolution of the case to the point where he has the choice of spending thousands of dollars, or just forgetting about it and walking away.
Given that your ideal would be not to be getting sued at all, this is a pretty could place to be.
So how do you do that? How do your get the case out of small claims court?
The court structure and rules that apply to small claims courts vary from state to state but generally, there are three avenues available.
First, some (though fewer and fewer) states allow the option of whether to file in small claims court or in a court of general jurisdiction, and likewise give the defendant the option of removing the case to another. Do not count on this option. As court dockets are getting more and more crowded the trend is to get more cases into small claims court and not less.
The best possibility for removal from small claims court arises from the amount in controversy. The plaintiff may have sued you for an amount just under the small claims court limit, but that does not mean that you cannot counterclaim for more. When you do that you get the amount in dispute above the small claims court limit and the case can be transferred.
Again, putting the matter of ethics aside – you need to win, your counterclaim does not have to be the greatest in the world – be imaginative.
Take our “simple” tree branch falling case.
With a little imagination and a couple of cooperative witness you might be able to file a counterclaim for defamation, arguing that the plaintiff has been going all around the neighborhood telling everyone what a sloppy how-owner you are, that you’re negligent for not trimming the tree, etc., etc. It doesn’t matter if you win or lose on the counterclaim – it’s just a tool to get the case where you want it – not where the plaintiff wants it!!
Another way to get a case out of small claims courts is to add issues to the controversy that exceed the jurisdiction of that court.
Most small claims courts are limited in what they can do, and because attorneys often do not participate, their jurisdiction does not include more complex legal matters. Usually they are limited to granting money judgments along with other, minor things, like evictions, landlord tenants disputes, etc.
Often, a small claims court will not be able to grant what is called equitable relief – issuing a general restraining order (not to be confused with e personal restraining order such as harassment or stalking), or making determinations as to ownership of real property. They likewise are often not empowered to issue declaratory judgments – making a legal determination of an issue.
So here again, you file a counterclaim requesting something that the small claims court cannot give you, and viola, your plaintiff finds himself completely unprepared in a court with rigid rules and procedures regarding which he is clueless!
So how would you apply this to our “falling tree branch case”?
How about seeking a determination of where the property line between the two properties is and whether or not the tree branch was crossing the line. What about seeking a permanent restraining order against the plaintiff, prohibiting him from cutting or damaging the tree? What about an interpretation of the subdivision restrictions to see if the tree branch protruding onto plaintiff’s property is protected by an easement?
With a little imagination there are all sorts of possibilities. If any one of them works you succeed in getting the case out of small claims court and into “big” court, where the price to play just went up exponentially for the plaintiff!
Just remember, the harder you can make it on your opponent, the more trouble you can cause him, the more you can cause him to spend, the better off you will be!
Next we’ll talk about possibly moving to different locations.