How to File Pre-Trial Motions in Small Claims Court - dummies

How to File Pre-Trial Motions in Small Claims Court

By Judge Philip Straniere

In a small claims case, the person most likely to seek a pre-trial motion is the defendant. The most common pre-trial motion is to ask for an adjournment because the defendant just received the notice, needs more time to prepare, and is not ready to proceed.

Examples of typical pre-trial motions a plaintiff may make include the following:

  • Your tenant hasn’t paid rent for three months — April, May, and June. By the time the case comes to trial, July rent is also overdue. The proper action is to ask the court to add July’s rent to the claim before the trial starts so that you don’t have to bring a new lawsuit for it.

  • You sued the defendant as John’s Car Repair. However, you now know that the correct name of the shop is the Bang the Dent Out Service Center, Inc. You make a motion to amend the caption—that is, change the name of the defendant to the correct name—before the trial starts so that if you win, you can collect on your judgment.

  • In small claims courts where the defendant has to file a written answer, examining that answer may give you grounds to ask for a judgment because the defendant doesn’t raise any legal defense to your complaint.

    For example, you’re suing your deadbeat brother-in-law for the money he owes you. His written answer admits he borrowed the money and he never paid you a cent. His defense is that he lost his job and has no money. It’s not a legal defense that requires a trial. You can file a motion and ask the court for a judgment because there is no legal defense.

    In this situation you may want to see if your court has mediation services so you can enter into an agreement where you get a judgment and you enter into a payment schedule with the defendant.

Ask for postponement

When your opponent asks for an adjournment — a postponement — before the trial starts and has a legitimate reason such as an illness, a family emergency, or the inability of a witness to attend, you have a strategic decision to make.

Even if you don’t consent to your opponent’s request for an adjournment , the court is likely to grant a motion if the reason seems valid and there haven’t been any prior requests for a postponement..

Beware of being treated as you treat your opponent. If you’re inflexible or difficult when your opponent requests a change, when the next trial date comes along and it’s you who needs an adjournment, your opponent may consider turnabout fair play and contest your application. And if the judge remembers the incident and thinks you were unreasonable, she may deny your application.

It’s a myth that each side is “entitled” to one adjournment. The court has sole discretion in determining whether to grant a motion to adjourn. Always be prepared to go forward.

Ask for dismissal

A pre-trial motion that’s much more serious than asking to postpone a trial is a motion to by the defendant to dismiss your case. In making a motion to dismiss, the defendant is saying that some legal reason exists that makes your claim unenforceable.

Some common pre-trial motions for dismissal are:

  • Wrong court: In other words, you are not dealing with a court that handles cases such as yours.

  • Case filed too late: The defendant is saying that the statute of limitations has run and the case can no longer be brought.

  • Wrong party: The defendant may claim that you sued her as an individual when you should be suing some other party — for example, the driver who ran into her and forced her car into yours.

  • Case has already been heard: The defendant may claim that you already sued for the same matter and lost.

The thought of your case being dismissed without even being heard may seem a little frightening. In reality, it’s unlikely that a defendant without a lawyer will know to raise these issues. A motion to dismiss the case may be a problem only if the defendant has an attorney.

Delay for discovery

As a general rule, discovery is prohibited in small claims court — you need to get the consent of the court. The way you get consent is to make a motion before a judge. Discovery is the legal process where each side tries to find our more information about their opponent’s case.

If discovery was granted and the other party did not comply, this could lead to another pre-trial motion to compel the discovery to be completed.

A typical discovery motion may be in a car accident case where the defendant’s insurance company got statements from the witnesses to the incident. So you’re not surprised at trial by a courtroom of witnesses claiming you ran the red light, got out of the car and yelled, “I knew I shouldn’t have had those last ten beers,” you may make a motion to see those statements before the trial.