DIY Legal – How to Litigate a Small Claims Case

Sometimes you need to go to court, but it just isn’t worth the money to hire a lawyer. If the lawyer’s fee would equal any recovery you get from the case, then why do it?

That is why the judicial system created Small Claims Court.  A non-lawyer should be able to get their day in Small Claims Court without having to hire a lawyer.

However, this doesn’t mean the process is easy!  There are still many procedural hurdles to get over before you can get your case before the Judge. Therefore, we created this consumer guide to show people how to successfully litigate a small claims lawsuit by themselves.

WARNINGS & DISCLAIMERS:  Read this first!

(1) This is not a comprehensive guide to litigating every small claims case. It cannot possibly be comprehensive because each case is unique, and our advice may change depending on the facts.

Reading this guide gives you a basic outline of how to successfully litigate a small claim in Maryland.  It will help you navigate the procedural hurdles so you can get your case before the Judge. However, it is no substitute for actually retaining a lawyer to litigate your case for you.

(2) Get a consultation. You can handle a small claims case yourself.  However, even if you use this guide to represent yourself, we strongly recommend you at least get a consultation with an attorney to go over the unique facts of your particular case.  Even a half hour of face time with an attorney can be invaluable.

An attorney can make sure you are on the right path, clarify anything in this guide, help you with some of these forms, tell you what evidence will be most persuasive in front of the judge, and warn you of any special rules in your case.

Perhaps the best advice will be strategic.  We go to law school for three years to learn how to analyze (some would say “over analyze”) every angle of things and break them down into component parts.  We can tell you the best way to present your case, and the main issues to concentrate on.  That could spell the difference between success and failure.

Most attorneys charge a consultation fee for their time. You should get a local attorney who knows how things work in the county in which you will file your claim. We charge a small fee for a consultation with one of our attorneys. That is money well spent on any claim, whether with us or another local attorney who knows how to handle these cases.

(3) We are not representing you in your particular case just because you read this article. You have not officially retained us unless you meet with one of our attorneys and sign a written retainer. When you file a claim, there is a space to list your attorney. Do not list our law firm there if you plan to represent yourself.

(4) This information applies only to Maryland.

What is a Small Claims Case?

Small claims are not that different from any other lawsuit.  They are simply handled in a less formal manner than large claims. That is what makes small claims cases easier to handle without an attorney.  You do not have to abide by all the rules of evidence.

There is no separate court for small claims. All small claims are handled in the District Court system. The amount in controversy is what determines if a claim is a small claim. The limit is $5,000. Any case you file in the District Court of Maryland for money only (not return of property or performance of services) for $5,000 or less is considered a small claim.

If you file your case for more than $5,000, you will be required to conduct your case according to the formal rules of evidence. Note that the $5,000 limit does not include interest or court costs you may be requesting. You can add those on top.

This may force you to make a decision. Let’s say someone owes you $5,250 and refuses to pay. Should you file for the full amount and be forced to hire an attorney? Any attorney you hire is likely to eat up way more than that extra $250.

You may want to decide to keep it in small claims court, just file for $5,000, and let the extra $250 go. You can simply limit your case to $5,000, and cap your damages at that amount in order to avoid being subject to formal rules of evidence and having to hire an attorney. This is a business decision.

Corporations May Not Need An Attorney

If you are the owner of a business, and want to represent your business in court, you can only do that in a small claims case. A corporation is deemed a person under the law, and is therefore a separate legal entity than the owner. That is why a corporation must be represented by a licensed attorney in most court actions.

However, an exception is made for small claims cases. The owner can represent the company in Court, but only in a small claims case.

A corporation can file a small claims case without an attorney as long as the claim does not exceed $5,000. Also, the claim cannot be a claim that is assigned to the corporation. It must be debt that was originally owed to the corporation, not someone else. This keeps out the debt collection companies.

Can I Really Litigate a Small Claims Case Myself?

Sure!  The whole point of small claims court is to let non-attorneys get their cases resolved.

However, you do have to be an organized individual, and you do have to be the type of person who can get their point across when talking to the Judge. But a small claims case does not require any special legal skills.

You would be smart to get a consultation with an attorney to make sure the legal issues in your case are as simple as you think they are, and to make sure there aren’t traps waiting for you at trial. Even a simple case may have some complexities that only a lawyer can see. But you can discover them for the cost of a consultation.

Things to Consider Before Filing Suit

Burden of Proof:  If you file the case, you have the burden of proof to show you are entitled to a judgment.  That means you have to do the work to win your case.  The other side can just sit back and hope you mess up.  You must have evidence, testimony, and any exhibits that prove your case.

Complicated Cases:  If your case is likely to be contested by the other side, or if it involves multiple witnesses, or aspects of the law that you don’t fully understand, an attorney can be very helpful, regardless of how much money is at stake. A consultation with an attorney can help you decide if your case is something that you can handle on your own or not.

Statute of Limitations:  Is your claim too old?  If so, you will lose no matter how valid your case is. For most money claims in Maryland, your case must be filed within 3 years of the date you knew or should have known that you had a case.

That last part – when you knew or should have known – can sometimes be complicated.  If your claim is even approaching 3 years old, you really should consult an attorney.  Do not miss your three year filing deadline for any reason, or your case is dead.

What is your evidence?  If it is written documents (like a contract, a bill of sale, letters, or emails) then you better have them printed out, organized in a logical manner, and be prepared to explain why they are evidence.  If there is one line or paragraph in a long document, know where it is and be prepared to highlight it for the Judge. Don’t make the Judge find it!

If you have no documents, you can still make your case, but it is more difficult.  Will your case be a matter of one person’s word against another’s? If so, you better be clear and persuasive, because you will have the burden of proof.  If the Judge thinks either of you could be telling the truth, you will lose because you have the burden of proof.  Your evidence has to be slightly better and more believable than your opponent’s evidence.

Will you have to pay the defendant’s attorney’s fees?  If your case involves a breach of contract, you should always review the contract to see what it says about attorney’s fees. Many contracts provide that if there is a dispute between the parties, that the prevailing party may be entitled to recover attorney’s fees should the matter go to court.

This could be a benefit to you if you win, or a cost you if you lose.  It is a potential hazard you should evaluate before you file suit. Again, a consultation with an attorney can help you with this decision.

Where to file?  You must file your case in the District Court for the County in which the Defendant lives or carries on a regular business.  You cannot just file it where it is convenient for you.

Keep Copies & Stay Organized: There is a reason attorneys keep copies of everything, and use files with various tabs to stay organized.  You should too.

Filing the Complaint

The first step in any lawsuit is to file a Complaint. A complaint is the formal document in which you make allegations that somebody else wronged you. For small claims case, you should use the District Court’s forms.

Electronic filing is now available in most of the court systems. See more detail on the Courts website (links below) on how to register and file. Electronic filing is not mandatory if you are filing without a lawyer. But it is a LOT easier. If you don’t want to deal with it, you can go to the courthouse and they will help you. But poke around the links below first. You might find it is easier and saves you a lot of time.

Here is a list of links that you can use to access all of this information:

• Court forms are here. You need form DCCV001F.
• Electronic filing instructions for pro se litigants are here.
• The Court Help section of their website is pretty well done! It has videos and other resources.
• The People’s Law Library is an excellent resource to understand the law and legal processes.

If you are confused by some of the technical parts of the complaint or other forms, or if this guide isn’t explaining things in enough detail, read their guide carefully.  But the Court’s brochure is limited somewhat in that the Court cannot give you legal advice.  We can actually give you some advice in this guide, and we do.

In the Complaint, you have to fill out some basic information, like your name and address, and the Defendant’s name and address, and the basic facts. You will have to get the Defendant’s legal name and proper address in order for the complaint to be properly served on the Defendant.

You have to check the box for what type of case you have.  A contract is a claim for payment of some money owed to you.  This is the most common small claims case, and is pretty simple to handle.  A tort is any case where someone caused harm to you or your property, and you want money damages to fix it or make up for it.

You can handle a small claims tort case, but you shouldn’t do it without at least getting advice from an attorney. You usually have to prove some negligence, and there are a lot of laws in Maryland that can adversely affect that claim.

Similarly, replevin, detinue and bad faith insurance claims are NOT cases you should try to handle without getting advice from attorney.  They are complicated.

You then get a space to write the facts.  Keep the facts as basic and simple as you can at this stage.  You do not have to tell the whole story there.  But you do have to put enough in there so the Judge knows what the basis of your claim is.

For example, if your case involves a breach of contract, you can just say “Plaintiff and Defendant entered into a contract for ______, a copy of which is attached.  Defendant did not pay.”  That is as basic as it gets, and it works!

If the amount of money you are claiming is a fixed amount, then it is easy to figure out.  If there is interest involved, then it is more complicated, and you have to attach an interest worksheet.  But you can still do this yourself.

The courts guide to small claims has fantastic examples of interest worksheets and explains how to properly figure it.  We recommend you look there if you have interest to claim in your case.

Who is the Defendant?

If it is a single individual, this is easy.  If not, this can be tricky.  Is it multiple people?  You have to name them all.  Is it a minor?  You cannot sue them in small claims court.  Is it their parents?  Probably not, but it depends on the facts.

If the person you are suing runs a business, or if you are suing the business, you have to be careful and name the correct legal entity.  Is it the person or the business that owes you money?  You cannot sue an individual if he did work with you under his or her business name.  You have to sue the business. And you do not necessarily serve the owner with the complaint.  You have to serve their “resident agent.”

You can find the Resident Agent online at the State Department of Assessments and Taxation at www.dat.state.md.us (warning, their website is not very user friendly).  But you name the business as defendant, and then list service on the resident agent.  The resident agent is not the defendant.

Is this sounding complicated?  It is.  Again, a consultation with an attorney can help navigate these potential problems and make sure you file the case against the right entity.  In fact, if you are suing a business, we recommend you get a consultation if for no other reason than to be sure you named the correct legal entity.

Also, a business is likely to have attorneys at their disposal and you should definitely have all your ducks in a row before filing that lawsuit.  Get some attorney help before filing that one.

You have to list the amount you are claiming due (remember to keep it below $5,000 if you want to keep it a small claim), and you have to sign it. Signing it means you guarantee the facts in it are true and correct to the best of your knowledge. Be sure you do not embellish facts or make any claims you are not sure of. Doing that is basically lying to the court. That is a very bad idea.

You will also have to fill in the Military Service Affidavit.  If you know your defendant is military, you must say so.  If you have no idea, then you can check the box saying you are unable to determine whether or not your defendant is military.

Affidavit Judgment

At the bottom of the complaint is an affidavit where you swear your case is true, your evidence attached is true, and you have a legitimate case. We strongly recommend you do fill this out and sign it.

Many defendants do not appear to defend their lawsuit. If that happens to you, you can still get judgment if that part is filled out, and if you attached all your necessary documents.

You actually may not have to show up for trial if your defendant fails to answer the complaint and fails to show up for trial.

However, we still recommend you show up on the trial date just in case, and to make sure the Judge has no questions for you, but having that affidavit gives you options to getting a judgment if the Defendant fails to do what they are supposed to do.

If you sign the affidavit and do not show up in court, and the court finds that it has too little information to enter judgment, the court will schedule your case for a hearing to obtain the information it needs to enter a judgment.  That causes a delay.  If your defendant does not respond to the suit, but shows up at trial saying they want to contest it, they will get a second chance and a continuance will be granted.  So again, we recommend you show up with your evidence ready for trial.

The Summons

The Clerk of Court will process your complaint, assign a trial date, and issue a summons to the Defendant. That summons goes back to you for service on the Defendant.

The summons will have your trial date, time, and location on it. Note the trial date and time and location, and be sure to be there on that day and on time. If the Judge calls your case and you are not there, it will be dismissed.

A summons is what gets served on the Defendant.  It is the proper legal notice to them that they have been sued, and they have to defend the charges.  Attached to the summons should be your complaint and copies of any attachments you filed with the Court.  The summons contains a lot of information, and you should read it carefully. Many people don’t do this, and it often causes problems.

Service of Process

You have to serve the process (the summons and supporting documents) on the Defendant in a legally acceptable way or the Court will not give you a judgment when your case is heard. They will dismiss your case. So you have to do this procedural part right, or you will never even get to tell your story to the Judge.

It is up to you to have the summons and complaint properly served on the Defendant. You must attach a copy of your complaint to each summons before service. If you file extra copies with the court at the time, the court will usually attach the complaint to the summons for you.

You have several options for service of process. The easiest way to serve a summons is get it done by the Sheriff. For a fee, the Sheriff will find and personally serve the summons on the Defendant. Or, you can hire a private process server. This is usually better as the private process server is usually more motivated to find the defendant, since they get paid by the job (no offense to the Sheriff’s Department!).

Process Servers are more expensive than the Sheriff, however.  But they usually charge $50-$100.  It is not a major expense, and we do recommend it.

Technically, any individual over the age of 18 who is not a party to the case can serve a summons. That means you cannot serve the summons, but your friend who is not a party to the lawsuit can.

However, if you think it will lead to any confrontation, then avoid getting a friend to serve the summons. It isn’t worth the hassle of an assault, or criminal charges being filed, etc. A professional knows the boundaries and won’t make a situation worse by doing something illegal when serving your summons.

I once had to defend a guy who committed a breaking and entering when he served process. He walked into the Defendant’s house to find him. He didn’t think he did anything wrong, but he technically committed a crime.  It can be pretty easy to cross that line and get yourself in trouble.

You can also serve a summons by registered mail, restricted delivery. Mail service is often ineffective for a variety of reasons, and we do not recommend it for that reason.

Mail service is the cheapest way, however. If it fails, you will have to get a new summons and serve it again. However, mail service can be very effective if you are suing a corporation. Then you are suing the corporation’s registered agent, and that person may sign for it since it is their job and they are less likely to avoid service.

Who to Serve?

If your suit is against an individual, you must name that individual as a party and serve that individual with the summons. You can also serve a person at their house of suitable age and discretion, but we recommend you try to serve the individual directly to avoid any claims of ineffective service.  Using a professional will avoid all this.

If your suit is against a corporation, you must name the corporation as a party but you must serve summons on their registered agent.

Every corporation is required to have a registered agent. You can find out any corporation’s registered agent by calling the State Department of Assessments and Taxation at 1-888-246-5941, or looking on line for business entity information at www.dat.state.md.us.

They will give you the name and address of the registered agent. If the business is not incorporated, sue the business and the individual owner, but serve the owner. If suing an unincorporated business, remember to serve the owner with summons and copies of your complaint for both the business and the person.

This can become procedurally sticky.  If you are suing a corporation, or unincorporated business, or something similarly unusual, you really should get a consultation with an attorney to be sure you are doing this right.  Otherwise, you may find you either get your case dismissed, or wind up with an unenforceable judgment.

Yes, these rules can be a maze.

Proof of Service

You must file your proof of service with the Court. The proof of service is on the summons. Read it over carefully and follow the directions.  Fill it out and file it with the Clerk.

Normally, the Court gives you 3 copies of the summons. Retain one for your records, one to fill out the proof of service, and give the last one to the Defendant along with all supporting documents when you serve him or her.

If you fail to file your proof of service, the Court will assume you did not properly serve the Defendant, and they won’t list your case on the docket at trial that day. They won’t even call the case.

Renewing the Summons

You will have to renew the summons if it expires before you serve it.  The summons will have the expiration date on it.  Read it over carefully.  If it expires, you can get a new one, but you will also get a new trial date.

Notice of Intention to Defend

When you read the summons, you will see that it instructs the Defendant to file a Notice of Intention to Defend if they intend to be present and defend themselves at trial. This can be a very simple document. Nothing fancy is required.

However, many Defendants don’t even bother to file one. They ignore it, or fail to read the summons, or just forget. That does not mean you shouldn’t show up. In fact, you should show up to be sure you get your judgment.

It is not uncommon for Defendants to fail to file the Notice of Intention to Defend, and show up for Court anyway. If that happens, the Judge will just set the trial for another day. If you are there, they may hold the trial.

Notices

While the Defendant is supposed to serve you with a copy of the Notice of Intent to Defend by mail when it is filed, many do not do so.

For this reason, the Clerk of the District Court will send you a notice indicating that a Notice of Intent to Defend has been filed. When you receive this, you’ll know that your case will be contested.

In fact, the court will send you notices of things that happen in your case.  But you can also check on line at Maryland Judiciary Case Search at casesearch.courts.state.md.us (no “www”). All cases are public records and you can track your case status on this website.

Motions

Motions are how you ask the Court to do something before trial. There shouldn’t be a lot of motions in a small claims case. The only one which should be common for a small claims is a request for continuance. A continuance is simply a postponement of the trial date.

If you need to make a motion, type it up in a simple format and submit it to Court. They also have forms, but you don’t have to use them.  Give it the title “Motion for _____” and the fill in the blank with whatever it is you are requesting from the Court.  Always serve a copy on the Defendant.

If the Defendant files a Motion, you have 15 days to file a response. But do not wait.  Get your response in as soon as possible.

Couterclaims

The Defendant can file a counterclaim, which is now a lawsuit by them against you.  If that happens, you really should get a consultation with an attorney to figure out how to handle this.  If you show up for trial, both of you will have a chance to present your case against the other and ask the court for judgment.

Witnesses – Documents – Evidence

You can subpoena witnesses to appear at trial. Get subpoenas from the clerk and serve them on the witnesses the same way you served the summons on the Defendant. Don’t do it yourself, but you can get a friend to do it.

You can present documents without a lot of formality, but you must be able to testify that they are true documents and accurate copies of the original.  You should have the original with you, but give the judge a really good copy.  You should have them ready to go in an orderly manner, and in the way that best tells your story from beginning to end.

Have copies for the defendant too.  You must show them all your evidence at the same time you give it to the judge.

If you have witnesses to present that are hostile or have a complicated story, or if you have any complicated documents to present, or any other evidence that is not simple and easy to understand, then you should really get a consultation with an attorney before you go to trial to be sure you do it right.

Pre-Trial Settlement

Many times you can settle your case after you’ve attained service on the defendant, but before the case goes to court. There is nothing wrong with an out-of-court settlement if it is what you want to do. In fact, it may be for the best.

This is largely a business decision you have to make.  It depends on what the defendant offers you, how close is it to full recovery, what the chances are of winning, and what the chances are of collecting on your judgment.

If you decide to settle your case before the day of court, you should get your settlement agreement in writing with the other party. The District Court Clerk’s office has a form called a Stipulation of Dismissal which both parties need to sign and file with the clerk prior to the trial if the case settles.

It is important that if you are dismissing your case that you reduce your agreement to writing and that all parties to the case sign the agreement prior to filing the Stipulation of Dismissal with the Court. You can also show up in court and orally state what your agreement is “on the record”.  That also provides some formality, but we prefer written documents.

We would be happy to prepare a settlement agreement and stipulation of dismissal for you for a nominal fee. That way, you can be sure the agreement is done right, and is enforceable later if the Defendant fails to do what you agreed to in the settlement.

There are certain technical things like “confessed judgment” that you should get in a settlement.  It is beyond the scope of this guide to explain how to do that on your own.

Trial

Once the summons is served, and the proof of service is filed, the trial will go forward. There is no pre-trial discovery in small claims, so there is not much to do until the court date. Pre-trial discovery usually involves interrogatories, which are questions from one side to the other side which must be answered, under oath, and are admissible in evidence at trial. You cannot do them for a small claim.

You should appear on the day of trial looking professional. You should have all documents or evidence with you that tends to prove your case.

It should be neatly organized, and you should have a copy for the court, and a copy for the Defendant. You will have to give sworn testimony about the case and give your documents to the Judge.

You can present other witnesses for your case. You will have an opportunity to cross examine the Defendant or any of their witnesses.

The technical rules of evidence do not apply. However, you still have to be organized, and present your case in a manner that adequately and efficiently tells your story.

This is your chance to tell your story so make the most of it. Be prepared before you walk in the courtroom. Practice what you will say. Make an outline of your case that will make sense to the Judge. That way you will not get lost if you get nervous.

Remember, the Judge has never heard this story before and you have to clearly communicate the facts to him or her. Keep it simple, but address all the important details. Practice on someone else before you go. Make sure it makes sense.

However, remember the KISS rule – Keep It Simple Stupid! Don’t too complicated with things that don’t affect the outcome. Always keep it simple and organized for the Judge.

The Judgment & Appeals

The Judge will make his or her decision at the end of the case. Be respectful of the Court no matter what decision they make. Do not make the Judge angry.

Take careful notes of what the Judge says when rendering their decision. If the Judge rules against you, you will have certain rights to appeal. Make sure you listen to the Judge explain the rules for appeals if you want to do that. You can call us for clarification if you wish.

Any appeal must be filed within thirty days, so be careful of the dates if you want to go that route. If you miss the deadline, your right to appeal is forever lost.

Collecting the Judgment

If the Judge rules for you, you will have a judgment against the Defendant. How do you turn that into real money? That is often a difficult process. There are entire classes for lawyers on this very subject, and many lawyers will refer you to an expert in collections if you get a judgment that is not paid promptly.

The first thing you should do is write the Defendant with a copy of the Judgment and ask them to pay it in full within 30 days to avoid further collection activity. Hopefully they will pay voluntarily. Most will, as nobody wants a judgment on their record.

If you need to undergo collection efforts, you can go to the Clerk’s office again (or search online) for more forms to file to enforce the judgment. Some options are to record the judgment in the judgment index, have it enrolled in the land records of the County in which the Defendant lives, garnish the Defendant’s wages or bank accounts, or levy on personal property. You may want to file for an oral examination to ask the Defendant about his or her assets that you may garnish. The Clerk’s office will help you fill out any of these forms. But collecting on a judgment is sometimes more difficult than actually getting the judgment in the first place.

But if you get a judgment against a deadbeat, collecting will not be easy.  Collecting from a deadbeat is beyond the scope of this guide.  You need to consider hiring an attorney to enforce the judgment.  You can also hire a collection agency just like the big companies do.

Line of Satisfaction

If they do pay, you have to file a form called line of satisfaction with the Court. If you fail to do this, the judgment will appear to be unpaid, and can negatively affect the Defendant’s credit. If that happens, they may sue you later. You certainly do not want to give them any chance for a revenge lawsuit, so do not forget to file your line of satisfaction after the Defendant pays up.

Conclusion

Again, it is best to get that consultation before you file your lawsuit. That is honestly the best advice I can give you before you try to file a small claims suit yourself.  You can handle a small claims case yourself, but the advice you would get in just a half hour with the attorney will ensure you do it right and don’t miss anything that will cause a delay, or even a loss at trial.

I hate to write this article purporting to tell you how to handle this yourself, and keep telling you to get a consultation. But there is no other reasonable way. It is just good advice. Any reputable lawyer would agree with me on that.

Each case is unique, and the unique facts of your case and the evidence you need to present is going to add a twist that a lawyer can spot during an in person consultation.

If you want to schedule a consultation with one of our attorneys, just call us to schedule an appointment. We wish you the best of luck in your case.