Being a Defendant in a Small Claims Case

If you get served a Small Claims Affidavit and Claim, you are the Defendant in a small claims case. Whoever filed the claim is the Plaintiff.

Small Claims Court is a division of the district court. It handles certain simple cases, and can only award up to $6,500 in damages. There are no lawyers or jury trials in small claims cases. Plaintiffs and Defendants must represent themselves in hearings overseen by judges or magistrates. For more information about small claims court generally, read the article An Overview of Small Claims Court.

Getting Notice of the Case

After the Plaintiff starts a small claims case against you, the court will send you a copy of the claim. It has a section called Notice of Hearing. That tells you when you and the Plaintiff must go to court for the case.

When you get notice of the case, you can:

• Settle out of court

• Remove the case to district court

• Appear in small claims court for the hearing

If you don’t do anything, the case won’t just go away. If you don’t go to court for the hearing, the Plaintiff will probably get a default judgment against you. The Plaintiff may then take steps to collect the amount of the judgment, such as garnishment or seizing your property.

Settling Out of Court

You could offer to settle the case before you go to court. If you and the Plaintiff reach an agreement, put it in writing, and both sign it, you can ask the judge to enter it as the judgment in the case.

You might want to consider mediation to reach an agreement. Mediation is a process in which two or more people involved in a dispute meet confidentially to work out a solution to their problem with the help of a trained neutral mediator. You can contact the court clerk or look at the Community Services section of this website to find mediators in your area.

If you reach an agreement, you can also ask the Plaintiff to voluntarily dismiss the case without having your agreement entered as a judgment. To do this, the Plaintiff files a form called a Dismissal with the court.

If the case is dismissed instead of getting a judgment, and you don’t do what was agreed, the Plaintiff has to start a new case. If your agreement is entered as a consent judgment, the Plaintiff can use the court to enforce the judgment, using garnishment or the seizure of property, to get the money that was awarded.

Removing the Case to District Court

You can remove the case from small claims court to the general district court. The Plaintiff can also remove it. To remove the case, file a Demand and Order For Removal, Small Claims in the court where the case was filed. There is no fee for removing your small claims case to the general district court. You can file it before the day of your hearing or on the day of the hearing.

You may want to remove the case to district court if:

• You want a lawyer to represent you;

• You want a jury trial;

• You want to file a counterclaim asking for more than $6,500; or

• You want to be able to appeal the judgment to a higher court.

You must file a written answer and serve it on the Plaintiff within 14 days if the case is removed to the general district court. It doesn’t matter if you remove it or the Plaintiff does – you still have to file the answer.

Filing a Counterclaim

If you think the Plaintiff owes you money because of the dispute the claim is about, you can file a counterclaim. This asks the judge or magistrate to award you money instead of the Plaintiff.

Put your counterclaim in writing. Be sure to include the date the dispute happened, the reasons for the dispute, and the amount of money you think the Plaintiff should have to pay you.

File your counterclaim with the court and mail a copy to the Plaintiff before the hearing.

Preparing for the Hearing

Prepare yourself before the day of the hearing. Make a list of what you think the judge or magistrate needs to know.

Gather your evidence. Evidence is what you show a court to prove your case. This might include a sales receipt, guarantee, lease, contract, letter or affidavit from a witness, or accident report. If something is too big to bring with you, you can bring photographs as evidence.

Any witnesses you ask to speak on your behalf may write a letter or sign an affidavit, but it is best if they appear in court as well. If you need someone to testify who is not willing to come to court, you can get an order to appear. You may want to talk to a lawyer about how to do this.

Going to Court

Attend the hearing and be prepared to present your case to the judge or magistrate. Bring all your evidence to court with you. The hearing will take place at the time and location stated in the notice.

Go to the court on the scheduled day and time. Dress neatly. Arrive 10 or 15 minutes before your hearing is scheduled. It’s important to show up on time. Let the court know you’re there by telling the clerk or officer sitting by the judge’s bench, but do not interrupt the current proceeding.

Be prepared to spend most of the morning or afternoon in court. Bring your witnesses and your evidence with you. Remember to speak clearly, answer any questions the judge or magistrate asks, and don’t interrupt the judge, magistrate or the other party.

Remember that when people represent themselves in court, they are expected to follow the same rules as lawyers do.

What Could Happen

If both you and the Plaintiff come to court on the hearing date, one of three things might happen:

• The judge or magistrate might recommend mediation. The parties can agree to that and try to solve their problem by coming to an agreement with a mediator’s help. If both parties don’t agree to mediation, the hearing will begin;

• Either party could ask to remove the case to the general district court. To remove the case, you must file a Demand and Order For Removal Small Claims in the court where the case was filed;

• The hearing could start. The Plaintiff will get to present their case first. Then you present your case.

If the Plaintiff does not appear, the judge or magistrate may dismiss the case.

If you do not appear, the judge or magistrate may issue a default judgment.

Your Hearing

When you are called, go to the podium and follow the judge or magistrate’s instructions.

Answer the judge’s or magistrate’s questions clearly and directly. If you have witnesses, ask them to tell the court what they know or saw regarding your situation.

Tell the judge or magistrate about your evidence, and present it to the court. Present your case in chronological order. It is much easier for the judge or magistrate to understand what happened if you tell it in the order it happened.

If the Plaintiff is in court, they will also have a chance to speak. Take notes so you can ask follow up questions when it’s your turn.

The Result of the Hearing 

The judge or magistrate could tell the parties the decision at the end of the hearing. The judge or magistrate can also wait to decide. When the judge or magistrate decides, the court makes sure each party gets a copy of the order.

If you lose the case, a money judgment could get entered against you. If you cannot afford to pay the money judgment right away, you can see if you getting an installment payment plan is right for you. You can read Getting an Installment Payment Plan to learn more. If you do not pay off the judgment within 21 days, the Plaintiff could try to get a writ of garnishment. To learn more, you can read An Overview of Garnishment. The judgment can become part of your credit report. If you do not pay it off, it could affect your credit score. To learn more, you can read Your Credit Report.

If you win your counterclaim and the Plaintiff owes you money, read the article Collecting Your Judgment.