Who
Can Serve the Defendant?
If
you are the person suing, then you can not be
the one who serves the defendant. You have three
choices: 1) You can use a sheriff (usually about
$35.00). 2) You can use a process server (usually
about $40). 3) You can have a friend or neighbor
serve the defendant (probably no cost). The important
thing to remember is that the person who serves
the defendant can not be involved in the case.
1)
Using the Sheriff: Sheriffs are busy. They
will do the serve when the can. And when they
can is typically between 8 am and 5 pm. So, if
the defendant is only home at night, the sheriff
may not serve the person at all. The sheriff will
still charge you, though.
2)
Using a Process Server: Process servers are
usually more efficient than sheriffs. They cost
a bit more, but you can add their cost to the
judgment if you win. Look around for a good one.
Look under "attorney service" in the
yellow pages or on line.
3)
Using someone you know: A friend, neighbor
or some other acquaintance can serve small claims
court papers too. You can even go with them when
they do it. This may be the best way because you
may already know where the defendant will be,
and when the defendant will be there.
Oh,
That Proof of Service!
In
court, the judge is going to look for your "proof
of service." This is the piece of paper signed
under penalty of perjury by the person who served
the defendant. That person service swears that
he served the defendant exactly as stated on the
proof of service. The proof of service should
include the name of the person serving, the date,
time, and location of the serve.
If
there is no proof of service, or if the proof
of service is faulty (not signed, not signed under
penalty of perjury, no location stated, etc.)
the judge will tell you to go get the person served
again. You'll have to start all over. So do it
right the first time.
After
the Defendant is Served: Nobody likes going
to court. That means that the defendant may contact
you in an attempt to settle this out of court.
You can say yes or no. Usually it is advisable
to settle and get whatever you can. You never
know what the judge will decide. The judge may
decide that you are in the right, but only award
you part of the money. You never know. However,
if you get an out-of-court settlement, you won't
get your filing fees back. If you get a settlement,
get it in writing, and notify the court that they
should cancel the hearing.
In the Small Claims Trial
If
the defendant doesn't settle with you, then go
to court on the trial date. Bring all your documents
with you-receipts, photos, contracts, etc. There
will be other people there, so pay attention to
the other proceedings. It's a real learning experience.
If
you fail to show up, the case will be dismissed.
Be there at the right time.
The
judge will swear everyone in, and then take the
cases one at a time. You have the right to tell
your story in your own words, bring witnesses,
and explain why you think the damages are the
amount you are claiming. Of course the defendant
will also have a chance to have his say, bring
witnesses, and documents too. And sometimes people
lie. Be prepared with the best evidence you have.
If
the defendant doesn't show up (this happens at
least half the time) the judge will examine the
proof of service to make sure the defendant was
notified. Then the judge will hear your side of
the story. If it's persuasive, then you'll win.
The judge will announce his or her decision, or
the judge may delay the decision to investigate
some details of the law. In that case the judge
will put the decision in writing and mail it to
both you and the defendant.
In
most states you can appeal a small claims judgment
if you are the defendant. The plaintiff usually
doesn't have that right. If you want to have that
right, then you'll have to take your case to regular
civil court. It's more expensive, but it may be
the best thing to do.
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