by Will Murphy, Attorney-At-Law
This article is designed to give general information for litigation under the Florida Small Claims Rules. Attorneys may find that in some cases their clients or potential clients will be best served by litigating small claims on their own. Therefore, this article is intended to be accessible to non-attorneys. This article is neither exhaustive nor definitive, and the reader is cautioned that it is informational only and not to be relied on as legal advice. There is no substitute for the professional judgment and advice of an attorney.
What is small claims? In Florida, there is no special court for small claims. However, in county court cases in which the amount being sued for is not more than $5,000.00 , the Florida Small Claims Rules apply. Many litigants in cases which come under these rules will choose to represent themselves, for several reasons. First, the relatively small amounts of money involved in these cases sometimes make it impractical to hire an attorney. Further, the small claims rules provide for simplified procedures, making it easier for a non-attorney to handle such case. The rules also require the court clerk to assist any litigant who requests assistance in the preparation of many of the papers which must be filed with the court.
This article will proceed from the point of view of someone who wants to file suit. Those who have been sued will be aided by reading the entire article, and will find one or two comments directed at them in particular.
Getting started. First you must gather information. Begin by gathering all of the paperwork that will help prove your case and read it over. Many cases come down to each side claiming different things occurred, and the judge, who has generally never before met either you or the people you are suing, must decide who is telling the truth and who is not. The side which has the papers to back up what they say is the likely winner.
You must know the correct names of all of the people or companies that you are going to sue — the defendants. If a defendant is known by more than one name, know what those other names are. If any of the defendants are corporations, you must use the correct corporate name. You should also find out if there are other names under which the corporation does business, sometimes called fictitious names.
You can get the correct corporate name and the registered fictitious names of any Florida corporation by calling the Florida Secretary of State, Division of Corporations at (850) 488-9000. The Division of Corporations can also give some information on non-Florida corporations which are authorized to do business in Florida. The operators at that number are very busy so be ready with paper and pencil. (If you have a fax machine, they can send it to you by fax). However, repeat back all of the information you get, because a small mistake can be hard or impossible to fix later. The Division of Corporations can also tell you the names and addresses of the corporate officers, the name and address of the registered agent for the corporation and the current status of corporation. They can also give you some historical information, i.e. when was the last time the corporation filed an annual report. For more information go to the Florida’s Division of Corporations online information, research, and electronic processing service center.
In general, if you are dealing with a corporation you will not be able to sue the individuals that run the corporation. Suits involving corporations are sometimes more complex than those dealing only with individuals. You should consider hiring an attorney for such a case.
After gathering all of the information you will need, you should get a form for a Statement of Claim. You can get such a form by going to the county courthouse and visiting the office of the clerk of the court. The form is essentially self-explanatory, but make a couple of copies to use for drafts. Have that form in front of you as you read the rest of this section of the article.
The case number will be assigned by the clerk after you file the completed form, so leave it blank. The plaintiff is the complaining party, you. There can be more than one plaintiff. If part of the damage done was to someone other than you, you should try to get that person to join you in the suit by becoming one of the plaintiffs. The defendants are the people being sued. Make sure you name the defendants correctly. Set forth aliases and trade names, for example: "John Jones aka Jay Jay Johnson"; "Eleanor Kane Company, Inc. dba E.K.’s Market".
Fill in the addresses of each of the defendants. For corporations, use the address of the registered agent, and set forth the name of the agent as well as the corporate name. Give the defendants’ phone numbers if you know any of their numbers.
The Statement of Claim form asks you to check a box showing to which of several categories your case belongs. Check off any of the categories in which any of your claims might fall.
Set forth, as clearly and concisely as you can, the facts that you feel entitle you to the damages you are requesting. If there is not enough room on the form, attach additional sheets. Present your case in a logical way. For example, it may be best to proceed chronologically, setting forth the facts in the order in which they occurred.
Fill in the amount of damages you are requesting. If you are asking for less than $5,000.00, and it is not clear exactly how much you are entitled to, you may wish to ask for "not less than $___ but less than $5,000.00", filling in your estimate of what your damages are. If you are entitled to interest, note this as well.
Fill in your address and phone number.
After making copies of the papers that establish your claim, attach the papers to the claim.
Once you have finished the final draft and have prepared all attachments, take it to a notary public and sign it in front of the notary.
Make up a Summons/Notice to Appear for Pretrial Conference. The official form is available as part of the Small Claims Rules.
Filing the suit and Service of Process. Copy the Statement of Claim with all attachments and the Summons/Notice to Appear, making a copy for yourself and a copy for each defendant, and leaving the originals for the court. Call the clerk’s office to find out the amount of the filing fee, and what form of payment you will need. Note that there are rules relating to where a case may properly be brought. Among these are the rules on venue. Make sure you are filing in the proper venue. Take the originals and copies and the filing fee to the courthouse. File the original Statement of Claim with the clerk and pay the filing fee. The clerk can stamp the date of filing on the copies for you. The clerk can assign a day and time for the pretrial conference. This information goes in your Summons/Notice of Pretrial Conference. File the original of the Summons/Notice of Pretrial Conference with the clerk.
For all defendants who are Florida residents, you may serve each such defendant by sending that defendant a copy of the Statement of Claim and a copy of the Summons/Notice of Pretrial Conference by certified mail, return receipt requested. For defendants who are not Florida residents, service of process must be as provided in the Florida Rules of Civil Procedure. For corporations, service should be on the registered agent. The exact methods you may use will depend on the circumstances. There are special alternative forms of service for corporations. You can get some
information on this by calling the Florida Secretary of State, Division of Corporations and asking for information on substituted service of process.
For out-of-state defendants you will frequently need to hire a process server to deliver the Statement of Claim and Summons/Notice of Pretrial Conference directly to the plaintiff. Do NOT deliver them yourself or have a friend do it. Process servers are listed in the yellow pages, and in
Dade County typically charge $12-$18 for each defendant. Prices in other areas may vary. In many places, service of process can be done by local police.
The process server should give you a certificate showing that the defendant was served. If you do not get such a certificate, contact the process server, since you will be unable to proceed if you cannot show the court that the defendant was properly served.
Keep your copy of the Statement of Claim in a file of your own, along with all other papers in the case, beginning with the receipt for the filing fee, and including certificates of service.
For Defendants. If you are a defendant, and you have a claim against the plaintiff (a "counterclaim"), and that claim arose out of the same transaction or occurrence as is the subject of the plaintiff’s claim, you must file the counterclaim against plaintiff at least five (5) days before the day set for the pretrial conference, unless the court has given you a different deadline. If you do not file it on time, you will lose your counterclaim.
If your counterclaim against the plaintiff does not arise out of the same transaction or occurrence as is the basis for the plaintiff’s claim against you, then you will not lose the counterclaim if you don’t file it. However, if you choose not to file the counterclaim in the time allowed you will not be able to assert it in this case — you will probably have to file a separate action against the defendant if you want to assert the counterclaim. If you are not sure whether your counterclaim arose out of the same transaction or occurrence as is the basis for the plaintiff’s claim against you, you should file it five (5) or more days before the day scheduled for the pretrial conference so that you will not risk losing your right to present your counterclaim.
If you file your counterclaim, and that counterclaim is for more than $5,000.00, then the case will probably come under the Florida Rules of Civil Procedure rather than the Florida Small Claims Rules. If the counterclaim is for more than $15,000.00, you must deposit a filing fee with the court
so that the case may be transferred to the appropriate court.
Discovery. If your opponent is represented by an attorney, you may be able to gather additional information about the case through one or more of the legal devices for this purpose. Together these devices are referred to as discovery. Discovery devices include written questions to which written answers must be made (interrogatories), interviews under oath (depositions), requests to produce documents or things for inspection (requests to produce) and requests that your opponent admit facts you specify in writing (requests for admission). Caution: If you use discovery against your opponent, he may use it against you, even if you do not have a lawyer. Do not use discovery just to give your opponent a hard time. Not only would this be an irresponsible abuse of your right of access to the court system, but it could well blow up in your face, as your
opponent’s attorney sets you for deposition, requests several admissions, serves you with numerous interrogatories . . . ad nauseam.
Pretrial Conference. Arrive on time for the pretrial conference and give yourself ample time to find parking and find your way to the appropriate courtroom. It is important to bring certificates of service with you. You do not need to bring witnesses. However, you should be prepared to negotiate the settlement of the case. Have an idea of what you would accept to drop the case. Remember to make allowance for your filing fee, which is not refunded. Also, be prepared to tell the judge how many witnesses you will call, and how long you think it will take for you to present your case. Err on the high side, as the judge will be more than irritated if you told her it would take 20 minutes and it takes two hours.
A bailiff will read off the names of the cases for which pretrials are scheduled, typically two or three dozen if you filed your case at the Dade County Courthouse, typically less if your case is in one of the district courthouses in Dade County. When you hear your name, call out so the bailiff knows you are present. He will then call the name of the defendant. If the defendant does not answer, the bailiff will usually call the defendant’s name again later. If the defendant still does not respond, you should ask for entry of a default judgment. The judge’s clerk will generally tell you what you need to do to get the default judgment entered.
If the defendant is present, you and the defendant will have a conference with the judge. The judge will be interested in getting a general idea of what the important issues in the case are, exploring the possibility of settlement and, if the case cannot be settled, figuring out how long the trial will likely last. You should know how many witnesses you will have at the trial. The judge may also wish to eliminate any claim you raised for which there is no legal basis.
Direct your statements to the judge, not to the defendant. Address the judge as "Your Honor," or as "Judge _______" (the Judge’s name will usually be on a placard in front of her). Make your comments short and direct. Remember that this is not a trial and the Judge is too busy to hear the case now and again on the trial date.
For the Defendant. If someone who is not a party to the case may be liable to you for all or a part of the plaintiff’s claim against you, you may want to ask the court for permission to file a third-party complaint. If this is granted, then you must write your complaint and a notice of supplemental pretrial conference and have them served on the third person (the "third-party defendant"). You will then need to attend this additional pretrial conference.
Trial. If you are unable to settle the case, you will be given a trial date. You must make sure you and your witnesses are there at the scheduled time and place. If you need witnesses who may not be cooperative, you should ask the clerk about getting a subpoena. You may wish to subpoena
even cooperative witnesses in case they either turn out to be less cooperative than you expected or in case unforeseen circumstances prevent their attendance at the trial.
Have the originals of all relevant documents, if possible. If you have only copies, be prepared to explain why you cannot produce the originals. If pictures would help explain what happened, bring pictures which fairly and accurately depict the relevant thing or place.
Although the rules of evidence are applied more liberally in small claims cases than other cases, those rules do apply, so it is possible that some evidence or testimony you want the judge to consider will be excluded and you will not be allowed to present it. If the evidence is being kept out
because it is not relevant, you may try to explain how it relates to your right to recover, but do not test the judge’s patience. If you cannot get the evidence in, continue to present your case, using other evidence to establish the facts giving you a right to recover damages.
As at the pretrial, address the judge as "Your Honor." Plaintiff presents his case first. Tell the judge who your first witness will be. Stick to the issues — do not ask about things that, while they might make you mad or make the defendant look like a bad person, do not relate to your legal right to recover damages from the defendant.
If the judge or the other side asks you questions, direct your answer to the question. Be careful about volunteering additional information. Be brief and direct. Do not argue with the judge or the defendant or other witnesses.
After Trial. The judge will generally announce her ruling as soon as the trial is over. If you have lost, you can ask for a new trial. Such motions must be brought soon after the judgment, and are rarely granted.
If you have won a judgment, the judge may ask, or allow you to ask, about the earnings and finances of the defendant. She may tell you that you cannot use the various legal devices employed for collection (sometimes called "execution") as long as the defendant makes specified periodic payments. For example, she could say that as long as the defendant gives you $20 a month, you cannot try to garnish his wages, have his property seized, etc. If the defendant fails to make the ordered payments, you can then have his property seized after filing an affidavit of the amount due.
When the defendant is not paying the judgment, there are a number of legal devices you may be able to use to collect the judgment. One that may be particularly useful to plaintiffs who were not represented by an attorney prior to judgment is the "Hearing in Aid of Execution." If the judge grants your request for this hearing, the defendant will be ordered to appear in court to answer questions about his earnings, financial status and assets available to pay the judgment you have against him. The rules provide forms for the papers you will need to file to get this type of hearing.
If you are settling your case, or if you agree to forego legal collection efforts if the defendant makes payments, consider including in your agreement or stipulation a provision that the parties agree to pay the attorneys fees of the other reasonably incurred in enforcing the agreement. Get the agreement in writing, and have it signed in front of witnesses who are not affected by the outcome of the case, or, even better, in front of a notary. File a copy with the court. These steps are very important — failing to get it in writing is what requires many people to come to court in the first place. File it with the court so that, if the other side does not keep the agreement, it will be simpler to demonstrate to the court just what they were supposed to do.
Appeal. If you are not satisfied by the judgment of the County Court, you have a right to appeal to the Circuit Court’s Appellate Division. There are a number of good reasons not to appeal. The large majority of appeals are unsuccessful. To win an appeal, you must demonstrate that the trial judge committed reversible error. You must show that you gave the trial judge a fair opportunity to avoid the error (that you "preserved" the error). It is almost always a bad idea to appeal if you think the judge decided wrongly only on a factual issue, rather than on a legal issue. Unless there is no competent evidence to support the trial court’s factual determination, the appellate court will not overrule the trial judge.
If you did not arrange for a court reporter to attend the trial, it will be extremely difficult to demonstrate reversible error to the appellate court — the appellate court needs a record. If, before trial, you think you would appeal if you lost, call a court reporter and hire her to attend the trial. The usual fee is about $50.00. If, after trial, you think you want to appeal, think again. Reread the preceding paragraph. Also, bear in mind that if you appeal you will probably now have to pay the court reporter to transcribe the record of the hearing, a service which can cost hundreds or possibly thousands of dollars, depending on how long the trial lasted. You will also need to pay additional fees to the courts. If you still want to appeal and you have been representing yourself, again consider hiring an attorney or seeing if there is an attorney who would handle the appeal for free ("pro bono") or for a reduced fee. If you cannot get an attorney, see the Florida Rules of Appellate Procedure for further guidance. Note that you only have a limited time to file a notice of appeal with the County Court.
Q: Can I get a jury trial?
A: Yes. Should you? Probably not. Jury trials are generally more complex and take longer than
trials decided by judges ("bench trials"). Some cases may have a greater chance of success or may
have a chance to result in a larger judgment when before a jury. However, a non-attorney will
generally be best-advised to keep it simple and waive his or her right to trial by jury.
Q: If I file a case and then think better of it, is there a way to stop it?
A: Yes, several, in fact. If you voluntarily dismiss cases including the same claim twice, the claim is
gone. See Florida Small Claim Rule 7.110 for more information on dismissals.
Q: How long after something happens can I take to file suit?
A: That depends on the nature of your cause of action. The Florida Statutes provide periods of
limitation for the bringing of civil suits.
About the Author
Mr. Murphy received a bachelor of science degree in political science, cum laude, from Arizona State University.
He received his juris doctor (law degree) from William & Mary. Since clerking for Judge Pamela B. Minzner of
the New Mexico Court of Appeals (now Justice Minzner of the Supreme Court of New Mexico) in 1990-1991, Mr.
Murphy has been in private practice in Miami, Florida, litigating in state and federal courts, trials and appeals.
Copyright 1996, 1997, 1998 — Will Murphy
This article not to be reprinted without the express, written permission of the author.