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Law
Offices PRACTICAL
CREDIT MANAGEMENT TIPS by John M. Samberg, Esq. SMALL
CLAIMS COURT Part 2 of a 3 part series designed to familiarize the reader with Small Claims Court forms and procedures. Last month in part one of this series, we discussed strategy and procedures for filing your Small Claims Court documents. Upon filing the claim documents, the clerk will set a hearing date, and provide you with court stamped documents for service. Any registered process server or the Marshal's office can serve the defendant with the claim documents. However, since your company is a party, neither you or anyone associated with your company can serve the defendant with the claim documents. The documents need to be served in a timely fashion, so keep the deadlines stated on the forms in mind when coordinating service of process. Obtain a proof of service form in case the defendant does not appear at the hearing. You will need to prove timely and proper service in order to put on your case in the absence of the defaulting defendant. Prehearing Considerations: Prepare for the hearing by having the originals and two copies of all exhibits you will need to prove up your case. Any contracts, invoices, letters, NSF checks and similar exhibits should be well organized and numbered in the order you plan to use them. If you have set multiple matters for the same day, keep a separate folder for each case to avoid confusion at the hearing. Prior to the hearing the judge will usually require you to share your exhibits with the other side, and will expect that the parties have tried to settle the case. Therefore, when you first see your opponent, hand him or her a copy of your exhibits and ask if there is any way to settle the case. If the defendant wants to pay over time, be open to payment terms but make sure the judge protects you. You can have the court order judgment in your favor with payments over time. Just let the clerk know you have a settlement, and the court will usually let you go to the head of the calendar to "put it on the record". Remember to ask the court to include in the judgment a provision that if the defendant fails to make a payment, the full amount of the judgment will be accelerated so that you can commence execution right away. Prior to the hearing, the defendant may want to continue the matter to another date. This is generally not a good idea since you will already have the hearing date reserved in your calendar, and probably will have other matters to present that day. If you refuse, and the defendant brings the topic up to the judge at the time of hearing, tell the court you object to a continuance for the reasons stated. But do not annoy the judge by resisting a continuance if the defendant has a good reason and the judge seems inclined to grant the continuance. Use the "KISS" Method. "Keep it Simply Simple" should be your goal in Small Claims Court. The court's daily calendar is usually jammed with all types of cases, and the judge will want to keep things moving. Therefore, the more organized and concise you are, especially if you have multiple matters on calendar, the more the judge and the courtroom staff will appreciate your efforts. Most Small Claims Courts put commercial matters and defaults (no appearance by a properly served defendant) at the beginning of the calendar, and you will be able to put on all your cases in sequence. As we discussed last month, although some courts use full time judges in Small Claims matters, you will most likely present your case to a practicing attorney sitting as a Judge Pro Tem for that day only. Like myself, many of these temporary judges are experienced civil litigators who will be completely familiar with commercial transactions. However, be prepared to fully and clearly explain your case to a judge who is not experienced in commercial law. As the claimant, you have the burden of proof and are therefore allowed to go first. Even if the defendant defaults by not appearing, you will have to meet your burden of proof and put on a case. When presenting your first case of the day give the judge a brief overview of your business and the nature of the business relationship with the defendant. Hand all original exhibits to the bailiff to give to the judge, and inform the judge that you have shown the exhibits to the defendant. If you have asked for additional money for an NSF check, be prepared to show the judge the required 30 day demand letter and certified mail receipt. Explain each document to the judge in a logical order, and tell him or her that you have demanded payment, but that the defendant has refused. Also, let the judge know that before the hearing you discussed settlement, but that the defendant would not agree. Conclude your presentation with a brief summary and a request for a judgment in a specific dollar amount, including principal, interest and costs (filing fee and service of process fees). Do your math in advance. The judge will probably have dozens of cases to hear, and will not want to wait while you add up the total amount of judgment you seek against the defendant. Try to Anticipate Defenses. Typical excuses for nonpayment include "nonconforming goods" and "no authority" to place the order or receive the goods. Try to anticipate these and other defenses in your initial presentation. The judge will generally have heard these excuses many times before and disregard them, but be prepared to rebut these defenses if necessary. If you incorporate Small Claims procedures into your credit management system, over time you will have many matters heard in your local Small Claims Court. Keep this big picture in mind when dealing with the court, and particularly with the clerk and the bailiff. Therefore, if a particular matter is not going your way, be prepared to concede that one battle in favor of winning the overall war. Your demeanor is critical. Be professional and listen carefully to any questions the judge may have. Do not interrupt the judge, talk only to the judge, and when it is the defendant's turn to speak, do not interrupt the defendant. If the defendant interrupts you, do not let the defendant rattle you. Simply ask the judge to let you finish without being interrupted. If all goes well, you will win a judgment in the full amount prayed for. Next month I will discuss strategy for successful collection of your Small Claims Court Judgment, and give you tips on increasing your chances of winning if the defendant appeals. Have a good month and remember, don't get mad - get paid! Please
direct questions or comments to: John Samberg is a partner in the Woodland Hills law firm of Bisno, Samberg & Mulvaney, and is a former private investigator. Mr. Samberg's clients include businesses and financial institutions in debtor/creditor and transactional matters. Mr. Samberg is a Magna Cum Laude graduate of Southwestern University School of Law, and in addition to his busy law practice, teaches legal writing at UCLA Extension, is a Los Angeles Superior Court Arbitrator and a Municipal Court Judge Pro Tem. He has presided over hundreds of small claims trials, and is a regular speaker at CMAC functions. |
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