Discovery of the Facts in Small Claims Cases - dummies

Discovery of the Facts in Small Claims Cases

By Judge Philip Straniere

In small claims court, the procedure for either the plaintiff or the defendant to find out more about the other side’s case is called discovery. Although rare in small claims court, it’s a fact-finding exercise so that each side can learn more about the case and perhaps get it resolved without going to trial when all the details are known to both sides.

If you’re the defendant, you may be puzzled as to why you’re being sued. You may not recognize the name of the plaintiff or, if you do, you may not remember any dispute. (Although obviously, if you were in an accident, you probably remember the plaintiff.)

Because the plaintiff doesn’t have to bring a lawsuit immediately, a year or more may elapse between the date of the incident and the date you’re sued. The complaint in small claims court often is such a brief statement and so lacking in detail that the defendant may have trouble figuring out why she’s being sued.

Discovery is not a procedure readily available in small claims court — but read on, because in some instances, the procedure is used for small claims cases. First, take a look at why discovery is not always appropriate for small claims cases, and how it can actually defeat the purpose of a small claims case:

  • Discovery delays the litigation. Discovery devices such as oral depositions, written interrogatories, and demands for production of documents aren’t permitted without the consent of the court, and it takes time to get that permission.

  • Discovery can be costly. For all of the same reasons that it causes delays — taking depositions, soliciting written answers, producing or copying documents — discovery costs money.

  • Discovery may require the court to get involved. The court may need to make sure that both sides comply with any requests for discovery.

  • Discovery is usually conducted by attorneys. Discovery requires familiarity with the rules of evidence. Because there are no attorneys in most small claims cases, conducting discovery becomes a complicated procedure.

The bottom line is that discovery defeats the purpose of small claims court.

One of the more common discovery devices is an oral deposition: A witness is put under oath and asked questions about the case with a reporter or recording device taking down the questions and answers. Taken before the actual court date, depositions are expensive because you have to hire a court-certified stenographer, and you have to produce a transcript, which may be used at trial.

Lawyers like to use this discovery device in most civil litigation because not only do they obtain information about the case, but they get to see the witnesses while they’re being questioned. Is the witness nervous? Is the witness evasive? Does the witness spit out answers with the accuracy of a computer? All of this is information a lawyer can put to good use during a trial.

Because small claims cases generally move quickly through the legal system and the issues involved don’t usually require the need to preserve testimony and gather such additional information that discovery provides, discovery is rarely necessary.

However, there are legitimate reasons for doing a deposition in small claims court. You probably want to take a deposition of a witness if

  • The person is leaving the state.

  • The person is ill or possibly dying.

  • The person is going to be unavailable to testify at trial for any reason.

Other common discovery devices are called written interrogatories. These are questions about the case one side sends to the other that have to be answered in writing, and the answers must be sworn to before a notary. This is a time-consuming process and would only be used in small claims court on a very limited basis.

If you get served with a set of written interrogatories, and the small claims court hasn’t issued an order permitting them, you may want to notify the court of the situation. If there is a court order, then you’ll have to answer them. In any case, don’t ignore them.

If you’re served with written interrogatories, you may want to have a lawyer review your answers before you send them back to the other side. Nothing prevents you from seeking legal advice for your small claims case even if lawyers aren’t permitted in court.

The reason to have a lawyer review your answers is so you don’t admit something in your response that will get your case thrown out of court or give the defendant a defense she is unaware of.

Other common discovery devices include the following:

  • Notice to admit: A demand served on you where your opponent asks you to concede certain facts. Anything admitted then doesn’t have to be proven at trial. For instance the landlord sends you a copy of the written lease and asks that you admit that it’s the lease between the two of you.

  • Notice to produce: A demand that you give the defendant copies of documents and exhibits you plan to use at trial so that she’s not surprised when you present them to the judge. It may be that you may have documents in your possession that your opponent needs to properly prepare her case.

    A notice to produce is not the same as a subpoena.

  • Demand for a physical examination: In any personal injury claim, the defendant has the right to have the plaintiff examined by a doctor of the defendant’s choosing. Because personal injury claims are rarely brought in small claims court, the odds are you won’t have to deal with this. But if you are given such a demand, you either have to comply or ask the court to void the demand.