What should you do if you get sued in small claims court? While the answer depends on the type of case, the worst thing you can do in any case is nothing. A judgment, or court order, against you opens the door for the plaintiff (the person or company who is suing you) to garnish your wages, seize your property, or take other actions against you. Though rules and procedures vary from state to state, these are some important tips for defending any small claims case.
Written by Attorney Paige Hooper.
Updated November 2, 2021
What should you do if you get sued in small claims court? While the answer depends on the type of case, the worst thing you can do in any case is nothing. A judgment, or court order, against you opens the door for the plaintiff (the person or company who is suing you) to garnish your wages, seize your property, or take other actions against you.
Most small claims cases involve debt collection. Even if you believe that you owe the debt, you should still review the complaint or petition and any attached documents. You may be able to reduce the amount of the claim or improve the outcome of your case. Though rules and procedures vary from state to state, this article covers important tips for defending any small claims case.
How To Prepare a Good Defense for a Small Claims Case
In small claims court, preparation is key to a successful case. Here’s an overview of how to prepare to defend your case.
1. Find the Rules and Forms Website for Your Local Small Claims Court
The basic steps for preparing a case are the same in any court, but the rules are different for every court. Before going any further with your case preparation, it’s important to find the specifics for your court.
Most small claims courts have websites that contain court information, local rules, and links to download and complete local court forms. Your court’s web address may be listed on the summons or notice you received telling you about the case. Some of the key questions to answer include:
Do you need to file a response before the hearing date? If so, when is the deadline to respond?
What’s required for a valid response? Do you need to use a certain form? Does it need to be notarized?
Where should you submit your response? Should you mail it, bring it in person, or submit it online?
Are there any other important forms or deadlines you need to know about?
Where should you appear for trial? Try to find the specific room number, if possible. This will save you time and stress on your court date.
If you have trouble finding this information online, call the court clerk’s office and ask. The court’s phone number should be on the summons.
2. See if a Pretrial Settlement Makes Sense
In many cases, you may be able to settle the case — that is, work out an agreement with the plaintiff — before the court date. This is a particularly good option if you think that the plaintiff has a strong case against you and is likely to win in court. For example, if you’re being sued for an unpaid credit card debt and you know that you owe the money.
Negotiate an Agreement
The easiest way to attempt a settlement is to contact the plaintiff’s attorney or representative and make a settlement offer. Don’t contact the plaintiff directly unless they are representing themselves.
It costs money to bring a case against you, so most plaintiffs won’t do it unless they think they have a strong case against you and a good chance of collecting. Since the case has already gotten this far, you’re not likely to convince the plaintiff to drop the matter completely. Your best bet is to try to agree on a reduced claim amount, typically around 20-35% less than the amount in the complaint. In exchange for the reduction, the plaintiff won’t have to spend any more time on the case or pay more legal fees.
If you’re able to reach a settlement agreement, make sure the plaintiff files a motion with the court to dismiss the case. If you don’t receive a copy of the notice of dismissal, call the clerk’s office a day or two before the trial date to confirm that the case has been dismissed. If it hasn’t, you should go to court at the date and time in your summons to make sure the case is dismissed. Sometimes, if the plaintiff’s attorney must appear in court on other matters, they may announce the settlement and dismissal into the court record instead of filing a formal motion. This is common practice in some courts.
Be prepared to go ahead with your case if the lawsuit hasn’t been dismissed. If you don’t show up for court and the case has not been dismissed, the court could enter a default judgment against you. If this happens, though, all isn’t lost. You can still file a motion to vacate the default judgment. If the plaintiff or their attorney told you the case would be dismissed and then moved forward with the case anyway, the judge is likely to set the default judgment aside. The court clerk’s office may be able to help you file the motion correctly.
Note: The plaintiff may include the settlement terms in an agreed order instead of just dismissing the case. Ideally, you’d rather not have a judgment against you, not even a reduced judgment, but this is the required procedure in some courts. This rule reduces overall paperwork for the court: If you don’t pay the settlement amount as agreed, the plaintiff won’t have to file another lawsuit.
3. Answer the Plaintiff’s Complaint
Some courts don’t require you to file a written answer before your court date. In these courts, you can just show up at the trial and argue your case. But most courts do require you to submit some sort of response or notice that you intend to defend your case. To find out what you’ll need to do, check with your court’s website or clerk’s office.
A small-claims answer is different from the professional legal pleadings that would be required in district court. Oftentimes, the clerk’s office will have an answer form that you can complete by hand and submit. Your answer generally just needs to express that you disagree with the plaintiff's claim. Unless your court has other requirements, you usually won’t need to include legal arguments.
4. Remember You Don’t Have the Burden of Proof
The plaintiff has the burden of proof, which means it’s their job to present enough evidence to prove that the claims in the complaint are true. Your job is to point out the things the plaintiff missed or got wrong. Some examples might include:
The plaintiff has sued the wrong person.
The plaintiff doesn’t have any evidence to support the claim.
You’ve already paid the debt.
The statute of limitations has passed and the debt is too old for the plaintiff to sue you.
The amount the plaintiff claims you owe is wrong.
Many states treat evictions as debt collection actions that are handled in small claims court. In an eviction case, you need to show proof that you made rent payments (or other defenses to eviction).
5. Consider a Counterclaim, if Appropriate
If you’re being sued in small claims court, consider the facts of the case and determine whether you have any claims against the plaintiff. If so, you can use this case as an opportunity to sue the plaintiff for those claims. This is called a counterclaim. If you have any counterclaims that arise from the same facts as the plaintiff’s case against you, you must file them now or you will lose the right to pursue those claims in the future.
A counterclaim is usually treated as a new complaint. You’ll need to file your counterclaim with the court and pay a filing fee. In most courts, you must also serve a copy of the counterclaim on the plaintiff as if it were a new lawsuit, usually by certified mail or a process server, and file a proof of service. You will have the burden of proof for any claims that you make in your counterclaim.
6. Use Discovery Well
Sometimes, you don’t yet have access to everything that you’ll need to prove that you are right and/or that the other side is wrong. For example, in a car accident case, you might need the police report from the scene. In a court case, each party has the right to request and receive necessary evidence before trial. This exchange of evidence and information is called discovery.
In superior courts, discovery is a formal process. The plaintiff and defendant use formal discovery procedures, including interrogatories, requests for production, requests for admissions, subpoenas, and depositions, to exchange evidence. The parties must follow strict rules about how and when to request discovery and what may be requested.
Most small claims courts don’t use these formal discovery techniques. Some small claims courts leave discovery up to the parties unless someone files a motion. Some courts require an informal exchange of evidence shortly before trial. Some courts only require formal discovery if one of the parties requests it. If you need to request discovery, check your court’s rules to find out your local procedure.
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Your argument is the heart of your defense in small-claims court. To maximize your chances of success, your argument should be legally sound, well-organized, and backed by credible evidence.
7. Make a Legal Argument
In a lawsuit, your argument is your legal position in the case. It consists of the reason(s) the plaintiff is wrong and the problems with the plaintiff’s case. Your argument should be a statement that, if true, would cause the judge to dismiss the case. Don’t make the common mistake of confusing a legal argument with an excuse. An example of a legal argument is: “I don’t owe the plaintiff the amount of money she claims that I owe.” An example of an excuse, on the other hand, is: “I had a lot of other obligations and I forgot to pay the plaintiff.” This excuse may explain your actions, but it doesn’t change the fact that you owe the plaintiff money.
8. Have Your Evidence Ready
Your argument will be substantially more convincing if you can back it up with evidence. The exact evidence you’ll need will depend upon the claim against you and the details of your argument. Every state has different rules for what evidence is necessary for a given claim or defense. For example, in a debt collection case where your defense is that you already paid, your evidence might include receipts, bank statements, or canceled checks showing the payments you made to the plaintiff.
As another example, consider an eviction case where your defense is that you had to fix a dangerous condition on the property, so you deducted the cost of the repairs from your rent payments. In that case, your evidence might include:
Photos of the dangerous condition
Affidavits from witnesses who saw the dangerous condition or workers who performed the repairs
Receipts for the repair costs you paid
Receipts or canceled checks showing that you paid the full rent minus the repair cost.
This is only an example. Your state might require different evidence in an eviction case.
9. Organize Your Case and Your Evidence
Take some time to organize the important facts and your evidence in a way that’s easy to follow. Chronological order usually works best. Try to lay your story out step by step for the judge. Have your evidence ready to go so it doesn’t disrupt the flow of your argument. Practice your argument, alone and in front of other people, until you feel confident about presenting it to the judge.
10. Consult With an Attorney
Most people don’t have an attorney representing their interests in small claims court. Some states won’t allow an attorney to represent you in small claims court. If your state allows you to have a lawyer, you may not be able to afford it, or you may decide that hiring an attorney isn’t worth the cost.
It may still be smart to consult with an attorney about your case. Even if the attorney doesn’t represent you in the case, they can still answer questions and offer some legal advice to help you prepare your defense. An attorney can also point out defenses or counterclaims that you may not be aware of. For example, in a debt collection case, a lawyer may find that you have grounds upon which to file a Fair Debt Collection Practices (FDCPA) counterclaim.
During the trial, you and the plaintiff will present your arguments to the judge.
11. The Case Will Likely Be Presented Before a Judge or Magistrate
Most small claims court cases are decided by a judge, a magistrate, or a justice of the peace. Occasionally, a case may be heard by a judge pro tem or a temporary judge. The judge will listen to arguments from both sides and decide which side should prevail. Jury trials are allowed in small claims court in some states, but this is rare.
12. You Must Be on Time
There are often many cases scheduled at the same time on a small claims docket. You’ll likely have to spend some time waiting for your case to be called. You must be on time for the trial, even if you have to wait after you get there. If your case is called and you’re not there, the plaintiff can start anyway, and the judge may enter a default judgment against you.
13. Dress Nicely
Most courts don’t have a formal dress code, but don’t show up in shorts and flip-flops. Trying to look your best is a sign of respect for the court. It shows the judge that you take this matter seriously. Professional attire, such as a suit and tie or a conservative dress, is always a good idea. If you don’t have any professional clothes, make sure your clothes are clean and not wrinkled and that your appearance is neat and tidy.
14. Don't Argue With the Judge
The judge is the person who will determine whether you are telling the truth and will ultimately decide your case. Treat them with the utmost respect. Never argue with a judge, even if you think they are wrong. Don’t say or do anything that could make the judge angry.
15. Be Prepared for the Judge To Ask Questions
Judges play an active role in small claims trials. You can expect an experience that’s closer to “People’s Court” or “Judge Judy” than “Perry Mason.” The judge may stop you mid-sentence and ask you a question. Don’t get flustered or angry. You might have gotten ahead of yourself or could be making an irrelevant point. Remember, it’s important for the judge to understand your side of the case. Questions mean that the judge is paying attention.
Never interrupt the judge, even if they interrupt you. Making the judge mad won’t help your case.
16. If You Don’t Understand a Question From the Judge, Let Them Know
The judge is likely to ask you questions. Try to answer these as truthfully as you can. If you don’t understand the question, say so. Judges work with these cases every day and are used to hearing and using legal terms. They may forget that you might not understand all the legal jargon. It’s always better to ask the judge to clarify than to take a guess and give the wrong answer.
17. Always Address the Judge as “Your Honor”
Be sure to call the judge “Your Honor” any time you speak to them. This is a sign of respect, and you might be surprised by how important this is to the judge. Also, you should always stand up when you speak to the judge or the judge speaks to you, unless the judge specifically tells you to be seated.
Every small claims court has its own rules and practices, but these tips apply to any court and any type of case. If you get sued in small claims court, look up the rules and forms for your court. If necessary, file an answer to the complaint. You may be able to negotiate a settlement for a reduced amount before going any further. If not, gather your evidence and prepare your argument for trial. At trial, remember to be respectful and listen to the judge. Defending your court case can seem intimidating, but you might be surprised at what you can accomplish.