A summons is a document accompanying the complaint informing the defendant of when a response, also known as an “answer,” is due. Unfortunately for the plumber, he missed the due date and found himself facing a default judgment. A default judgment means that regardless of the merits of the claim, the plaintiff can seek assistance from the court in collecting on the cause of action, including garnishment and executing on assets. Fortunately, the plumber hired my attorney friend to represent him in the appeal before the appeal period expired.
Persistence is the Key to Success
Generally, unlike in regular civil cases, an appeal from a small claim allows the appellate court to look at the factual allegations, not just legal or procedural irregularities. In this case, my friend attacked the allegations and sought to dismiss the case on legal grounds, thereby taking full advantage of the law’s due process. The process was lengthy, but cheaper than paying the bogus judgment. Happily, the court eventually ruled in favor of the plumber.
At the hearing the plumber said that although he had promised to show up at nine in the morning, he was running late because a particular fixture the lawyer had ordered was difficult to obtain. After finally procuring the part, the plumber immediately went to the lawyer’s house, but no one answered the door. After waiting five minutes, the plumber went to his next job. The plumber further testified that the lawyer never called his office to ask if he was on his way, nor did he call to reschedule the repair. The lawyer could not provide a satisfactory explanation in response to the plumber’s story. Believing the plumber, the court dismissed the lawyer’s claim.
Always Respond to a Lawsuit
There are several lessons to be learned from this case. First, when served with a summons and a complaint, it is wise to consult with an attorney immediately. Typically an answer is due within twenty to thirty days. Thus, time is of the essence. Had the plumber called an attorney in the first instance he would surely have avoided the default judgment.
At the very least, a defendant should call the court and ask to speak to the clerk. Although the clerk of court cannot give legal advice, he or she can give a defendant in a small claims case some very important information, including: directions to the courthouse, where the answer should be filed (a recently reported case found for the plaintiff when the defendant filed his answer with the clerk’s office at the tax assessor’s office, next door to the court clerk’s office at the county building), and resources available to the public such as court forms, legal clinics or law schools that provide free legal advice. If a clinic does not take one’s case outright, a defendant will at least be informed about what to expect procedurally and how to respond.
Always Challenge the Facts
Although it seems obvious, never believe the facts as alleged in the Complaint. All too often an attorney is faced with a case in which the client has already admitted the facts. The facts in a complaint are generally over-stated and exaggerated. They are designed to give the court a compelling reason to rule in the plaintiff’s favor. In this instance, the plumber should have denied that he failed to appear at the lawyer’s house. In addition, it would have been entirely appropriate for the plumber to deny that the attorney suffered any damages.
Challenging the facts accomplishes three things. First, it gives the judge pause in ruling in the plaintiff’s favor. Such a challenge is very simple. All one has to do in the answer is list the paragraph of the allegation with the word “denied” next to the paragraph number.
Although not an issue in my friend’s case, it is also important to look at the introductory paragraphs. Often a complaint will not state the defendant’s name or residence correctly. A famous case involving a paternity action, for example, was dismissed for serving the complaint on the wrong man. The defendant simply pointed out the fact that he had a different middle initial from the alleged father and the case against him was dismissed.
Also, if the complaint claims that the defendant is from outside the county in which the court sits, or if the defendant is actually from outside the county and the defendant’s residence is improperly stated, the court will be forced to dismiss the case for lack of jurisdiction. However, the defendant must first deny jurisdiction in a timely manner. Thus, a simple denial of the facts can be very effective.
Second, explaining the defendant’s version of the facts in the answer gives the judge an excuse to reduce the plaintiff’s award. Like Solomon, judges want to please everyone who shows up in court by giving them something. In many instances the court will reduce the claim by half simply because it knows the other side of the story and can see that the defendant is not entirely to blame. In above example, the court simply did not believe the lawyer’s story, feeling that the plumber’s account was more credible.
Third, a factual challenge may expose a fatal flaw in the plaintiff’s case. In this instance, the lawyer never called the plumber to find out whether or not he was on his way to the job site. He never called to reschedule the repair. According to the court in this case, had the lawyer called and learned that the plumber was on his way, he would have been more attentive when the plumber showed up and answered the door (assuming the lawyer was home). Had the lawyer allowed the plumber to do the work, the lawsuit would not have arisen. Furthermore, had the lawyer called to reschedule, the lawyer would have been able to return to work and would have suffered few if any damages, which brings us to our final point.
Always Try to Minimize Damages
As a claimant (the lawyer, in our example), it is important to minimize damages — also known as “mitigation.” If the court feels something could have been done to reduce or eliminate the loss, it will hold the failure to act against the claimant. As a result, anyone who feels they have been wronged should immediately try to make the best of a bad situation. Hopefully, the situation can be resolved in its entirety. But if not, at least the losses will be as small as possible. If the losses are still intolerable, then one can seek relief from the court with the confidence that the court will award the entire amount of the claim.
As a practical matter, it is always better to avoid the time and expense involved with our legal system, so it makes sense to minimize one’s damages as much as possible at the outset.
In sum, if you are ever sued in small claims court, always respond within the time stated in the summons. The response should deny as many of the allegations as possible and provide one’s own version of the story. As a plaintiff, one needs to be prepared for a defense and should do everything reasonably possible to mitigate damages to avoid having to go to court altogether. Mitigation also gives the court reason to award the full amount of the claim. On the other hand, failure to mitigate can be an effective defense.
This article is not designed to provide specific legal advice. Only a licensed attorney hired by the reader can do that. Anyone served with a complaint should take it seriously and work with the court and the opposing party to resolve the case as efficiently as possible.
