Join me as I walk a family friend through the small claims process, after she had been in a minor car accident. This podcast is the audio of a TV episode, which is available on the “Everyday Law TV” YouTube channel. https://www.youtube.com/channel/UCGES5mOlkJvbS37ARxmPYVw?spfreload=5
When people suffer an injustice, it is natural to think of hiring a lawyer to handle your case. However, if the damages in your case are under $10,000, it may be hard to find a willing lawyer to handle such a case. Even if a lawyer can be found, he or she might charge a minimum of $2,500 or $3,000 just to take the case. People can handle their own small claims (damages under $10,000) without hiring a lawyer in Small Claims Court if they do a little research.
A small claim starts with an injustice or wrong. That injustice then must be categorized according to the small claims complaint. Then, the claimant bringing the claim must familiarize themselves with the small claims procedure and follow those steps.
As stated previously, there must be an injustice or wrong. The injustice could be damage to property, a bad home repair or an injury to a person such as a car accident. The types of small claim categories can be found on the small claims complaint. That complaint can be found on the court forms section of the Lake County Court’s website, www.19thcircuitcourt.state.il.us.
The small claims complaint is a fillable PDF form that lists categories of claims including property damage, personal injury, bad repair, promise to pay money and a general catch-all category. Additionally, there is a section for describing what happened; what did the wrongdoer or defendant do wrong and how those actions injured the claimant or plaintiff. In completing a complaint, the plaintiff needs to consider the elements of the claim and proof or evidence to prove the claim. Each type of claim has different elements. Proof can include photos, paid bills and/or witness testimony at trial.
After the complaint is filled out, another form (also found online) is needed before the small claims complaint can be filed with the Court. A small claims summons lets the defendant know a claim is being filed against him or her and gives the Court jurisdiction or power to bring the defendant into Court. The summons contains the names of both parties, the amount of damages claimed and the return date to Court. The complaint and summons is filed with the Lake County Circuit Clerk and there is a fee for this filing. Additionally, the summons has to be served upon the defendant. The summons can be served by the Circuit Clerk (certified Mail), the Sheriff or by a private process server (there is fee for each).
The next step in the small claims process is the return date. This is not the trial date, but the first Court date. If the defendant was served, he or she can file an Appearance with the Court or can appear in Court on the return date and the judge will set a trial date in 2 weeks. If the defendant was served but did not appear, the plaintiff can obtain a default judgment against the defendant. Later, there will be a prove-up, where the plaintiff can bring in evidence of damages to obtain an order from the judge for those damages.
If a trial is to be held, both parties can bring in their proof and witnesses and each side will tell their side of the story. Many people are intimidated by the thought of a trial before a judge in a courtroom, but a small claims trial is usually before an empty courtroom. Additionally, anyone can attend a trial in a courtroom and attending a small claims trial is a good way to become comfortable with the process before bringing their own claim. Additionally, the law library in the Courthouse has a booklet about the small claims process that is detailed.
It is also helpful to know that there is a Small Claims Mediation program in Lake County that can help claimants resolve their claims without a trial. A lawyer trained in mediation will talk to each side separately and try to help both parties come to an agreement to settle the claim. It is also important to remember that everything is negotiable and it is possible to work out a settlement before a trial. Sometimes, simply sending a letter to the defendant with the completed, yet unfiled, small claims complaint and summons can motivate a defendant to resolve the claim with the plaintiff.
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.”