In this edition of our “Sunday Law Series,” a partnership between WRLR 98.3 FM and the Round Lake Area Public Library District, we discuss how to bring a small claim without a lawyer!
If you have suffered an injustice but the monetary value is not high enough to hire a lawyer to handle the claim, it is possible to handle the claim yourself in Small Claims Court. Monetary damages in a small claims case must be under $10,000.00. Filing a small claims complaint does not require hiring a lawyer and is something anyone can handle with some planning and preparation.
There are 5 areas to consider in a small claims case. First, you must have suffered an injustice. Next, the injustice must be categorized. Third, the elements of the injustice must be established. Fourth, evidence of each element needs proof. Finally, the claimant must learn about the procedure for a small claims case.
The injustice suffered is some sort of wrong. It may have been someone performed a bad repair to your home or someone injured you in an accident. The injustice or wrong then must be categorized. The best way to find the correct category is to look at a small claims complaint form from the Lake County Circuit Clerk’s office (www.19thcircuitcourt.state.il.us/1256/Court-Forms).
There are 6 categories listed on the small claims complaint. The categories are a written contract to pay money, damage to personal property, a verbal agreement to pay money, improper repair, personal injury or some other reason. Additionally, as previously mentioned, the damages in a small claims case cannot exceed $10,000.00. The category that your case fits will dictate the elements that must be proven. The small claims complaint also requires the names of both parties; the plaintiff and the defendant, the category of the case and a description and dates of what happened.
Each category of a small claims case requires that certain elements be established and that each element is supported by evidence or proof. For instance, an improper home repair case requires an agreement between the parties, improper work and that work was paid for by the plaintiff bringing the case. Proof for each element could be established with a signed contract, testimony from an expert that the work was shoddy and a paid bill for the repairs.
The procedure for a small claims case starts with filling out the form complaint. Additionally, a summons must be filled out and served on the defendant to give the Court jurisdiction over the defendant and to give notice to the defendant that he or she is being sued. Both the complaint and summons must be filed with the Lake County Circuit Clerk (there is a fee paid for such filings). Service can be made by the Sheriff (in person) or by the Circuit Clerk (certified mail). The next step of the case is the return date which is 2 or 3 weeks after filing the complaint. At the return date, the judge will set a trial date. If the defendant fails to appear or fails to file an appearance after the defendant has been served, the plaintiff can obtain a default judgement and obtain a prove-up date for damages.
A small claims trial is usually set 2 weeks after the return date. Each party brings their witnesses and evidence to the trial. At the end of the trial, the judge issues an order finding in favor of the plaintiff or the defendant, and the monetary amount of the judgment if applicable. The small claims trial is more conversational and is not filled with a gallery of spectators. Each side is given an opportunity to tell their side of the story.
It is always important to keep in mind that everything is negotiable. In other words, it might be wise to first contact the person who wronged you and outline the problem and ask for a solution. If there is no response, you might fill out a small claims complaint and summons and send it to the defendant before you file it with the Court so that the defendant understands that you mean business. Even if you end up filing your complaint, it is still possible to settle the matter with the defendant during the small claims process.
Robert Monahan, Esq. is a lawyer in Gurnee, IL with his own practice in personal injury. He has a radio show on Thursday nights at 7 pm, called “Everyday Law,” on WRLR 98.3 FM, where he tries to demystify the law for the ordinary person. “Everyday Law” can be downloaded as a podcast from iTunes or other various podcatchers. His two websites are www.monahanfirm.com and www.gurneepersonalinjuryattorney.com. He also has two Facebook pages – “Robert A. Monahan, Esq.” and “Everyday Law.”