The Defendant's Small Claims Court Options

Learn what to do and not to do if someone sues you in small claims court.

If you find yourself at the wrong end of a lawsuit in small claims court, here are your options.

Raise a Procedural Problem

You may believe that you were not properly (legally) sued or served with the plaintiff's court papers. Perhaps the plaintiff's papers were left with a neighbor or you were not given the correct number of days in which to respond to the plaintiff's complaint. Or maybe the plaintiff sued you in the wrong court.

Contact the clerk immediately to explain the problem with the way the plaintiff delivered the court papers or with the court location and ask that the case be delayed ("continued") to a date that is convenient for you or transferred to the correct court.

Do not be tempted to simply not show up in court just because you think there's a procedural defect in the plaintiff's case. A judge can easily overlook even a major technical problem and, as a result, enter a judgment against you by default. If this happens, you will have to go to the trouble of requesting that the judgment be set aside ("vacated").

Out-of-state defendants. If you don't live or do business in a state where you are sued, a court normally doesn't have power ("jurisdiction," in legalese) to enter a valid judgment against you, unless court papers are served on you while you happen to be in that state. (Exceptions exist for people who live out of state but own land in the state where the lawsuit was filed or got into a traffic accident in that state.) If you are an out-of-state resident and receive small claims papers via the mail, promptly write a letter to the court explaining that you do not believe you are subject to the court's jurisdiction. Stay in touch with the court clerk until you are sure the case has been dismissed.

Try to Negotiate a Compromise

If the plaintiff has some right on his side, but you believe you are being sued for too much, contact the plaintiff and try to work out a compromise settlement. One good approach is to call, write, or email the plaintiff and make an offer. How much to offer depends on the strength of your defense and whether you think the plaintiff's estimate is reasonable or substantially inflated.

Assuming the plaintiff has a strong legal position (that is, you probably are legally responsible for the plaintiff's injuries or damages) and is asking the court for an amount that's, broadly speaking, reasonable, you might begin by making an initial compromise offer to pay about half of the plaintiff's demand. Even with a strong case, the plaintiff may be motivated to accept your lowball offer, if for no other reason than to save the time it takes to prepare for and appear in court.

More likely, your offer will set in motion a little dance of offer and counteroffer, with an eventual compromise of somewhere between 65% and 80% of the plaintiff's original request. If the plaintiff is asking for way too much, or you are not sure that a judge would rule in the plaintiff's favor, you'll want to offer less. (For more negotiating tips, see Nolo's article Try to Compromise Before You Sue.)

Suggest Mediation If Want to Avoid Conflict

If negotiation doesn't solve the problem, mediation is almost always beneficial to the defendant, because the process tends to encourage a compromise settlement for a lower amount than the plaintiff's demand. In addition, mediation gives the defendant a chance to raise issues that are not officially part of the plaintiff's lawsuit. For example, in a dispute between neighbors, businesspeople, or relatives, it's often important to discuss and settle emotional concerns in addition to sorting out how much is owed. (For more information, see Nolo's Mediation, Arbitration & Collaborative Law.)

Ask the small claims court clerk for help with mediation. In some states, small claims courts require parties to try mediation before a judge will hear the case. Elsewhere, mediation is easily accessible on a voluntary basis, either right in the courthouse or at a nearby community mediation project. Ask the small claims court clerk where mediation is available in your area. Then contact the mediation project and enlist their help in bringing the plaintiff to the table.

Don't Show Up ("Default")

Assume you have no valid defense on the merits of the case. Perhaps you borrowed money under the terms of a written contract and haven't paid it back. If you know you'll lose, you may conclude that it makes little sense to fight back in court. Fine, but realize your decision to not show up will almost surely result in a default judgment against you. The judgment will probably be for the dollar amount demanded by the plaintiff, plus the amount of his filing fee and any reasonable costs of serving the papers on you.

Ask for Installment Payments

In a number of states, if you do not dispute the plaintiff's claim, but cannot afford to pay it all at once, the law allows you to request the right to make payments in installments. After checking with the small claims clerk to see that installment payments are an option in your state, your best bet is to show up in court and explain your financial situation to the judge. If you can't be present, write a letter to the court prior to the court hearing (be sure to properly identify the case, using the case number from the Claim of Plaintiff form) explaining why it would be difficult or impossible to pay any judgment all at once.

What if you believe you don't owe the plaintiff a dime and you want to actively contest the case filed against you? To fight back, you must show up in court on the day stated in the papers served on you, unless you get the case delayed (continued) to a later date. In the great majority of states, a defendant need not file any papers with the court clerk; showing up ready to defend yourself is enough. However, a written response must be filed in a few states, including Alabama, Alaska, Connecticut, Oregon, South Carolina (oral response is also okay), Vermont (oral response is also okay), and West Virginia.

To defend most types of cases successfully you'll want to make a convincing oral presentation and back it up with as much evidence as possible. Here is a good approach.

Analyze your opponent's case. To do this, you will normally want to focus on any facts that show you are not legally responsible. Next, if you conclude that the plaintiff may have a winning case, focus on whether he has asked for the right dollar amount. For example, if you can convince a judge that you owe only a couple hundred, not several thousand, dollars you will have won a substantial victory.

Develop evidence. The key to winning a small claims case is to convince the judge of your version of the facts. To do this, you need to back up your oral presentation. The best way to accomplish this is with eyewitnesses (if you are lucky enough to have any) and expert witnesses who can lend credence to your position (for instance, a mechanic who agrees the plaintiff ruined your engine). (For help, see Nolo's article Offering Witness Testimony in Small Claims Court.) In addition, you will want to gather any documentary evidence, such as contracts, canceled checks, or photos that support your position.

Practice your court presentation. After the plaintiff presents her case, it's your turn. Be prepared to make an incisive, logical presentation of why the plaintiff should receive little or nothing. And don't become flustered if the judge interrupts to ask questions many judges will do this repeatedly. Once you have your arguments thought out, practice them in front of a friend or family member until you are thoroughly comfortable. One trick here is not to repeat uncontested facts presented by the plaintiff, but to immediately focus on why the plaintiff's case is misguided. (For some guidance, see Presenting Your Testimony and Evidence in Small Claims Court.)

File a "Claim of Defendant"

Finally, you may believe that it's the plaintiff not you who is at fault and you want to sue the plaintiff. To assert your own claim against the plaintiff, you should promptly file a Claim of Defendant (called a counterclaim in many states) in small claims court for up to the small claims court maximum. Don't wait until after the plaintiff's case is resolved to bring your own lawsuit. In many states, you must file a counterclaim or else lose your right to bring your claim against the plaintiff. If you wish to countersue the plaintiff for more money than the small claims maximum, you may have the case transferred to the appropriate formal court.

Assuming your case stays in small claims court, both your claim and the plaintiff's will be heard together. You should prepare and present your case just as you would if you had filed first that is, understand the legal basics that underlie your case, make a practical and convincing oral presentation, and back it up with as much hard evidence as you can find.

Additional Information

For more preparing evidence and witnesses and making a presentation in court, see Everybody's Guide to Small Claims Court, by attorney Ralph Warner. You can also visit Nolo's Lawyer Directory to locate an attorney in your area, as well as view information about each lawyer's experience, education, and fees, and perhaps most importantly, the lawyer's general philosophy of practicing law.