How to Respond to a Small Claims Summons - dummies

How to Respond to a Small Claims Summons

By Judge Philip Straniere

Unless you’re the type of person who gets sued on a regular basis, getting served small claims papers can really ruin your day. You may be chomping at the bit to point out what a liar the plaintiff is and what the real facts are. But you have to be prepared to respond in a reasonable and rational way.

Taking action to deal with the problem is the best response to a summons. Take a breath, keep calm, and get a strategy in place. Remember this is America where people sue other people for just about anything imaginable.

Consider getting a lawyer

The first thing to do after you read the papers is to check with the small claims court to see if the rules permit you to have a lawyer.

Some small claims courts permit both the plaintiff and defendant to have a lawyer. Others don’t allow either side to have legal counsel. Most, however, allow defendants to be represented by an attorney, even if the plaintiff is barred from doing so.

The reasoning is that the plaintiff selected small claims court and agreed to not be represented under the rules, but as the defendant, you didn’t participate in that decision, so it’s only fair to let you have counsel if you want it.

If you’re a corporation or some other business created under the law of a state, you may actually be legally required to be represented by counsel. So find out as soon as you can.

Prepare your answer

You have to answer a summons in one of two ways: oral or written. The two require different responses:

  • If the court permits only oral answers, you just show up on the date of trial prepared to defend yourself.

  • If you can file a written answer, you generally must file before the court date with a copy sent to the plaintiff and the original filed with the court.

An oral answer isn’t a speech you memorize before your court date. It just means that you don’t file a written answer with the court before the trial date.

Prepare what you’re going to say when you get before the judge by writing it down. For one thing, it helps you get your facts straight in your head. For another, it will be helpful if the court decides to ask for a written answer after your hearing or the judge permits you to hand in a written summary of your response to the plaintiff’s allegations.

A written answer to a summons can include several options:

  • Denial: You can deny the allegations of the plaintiff’s complaint. The plaintiff has to prove everything you deny.

  • Admission: You can admit certain information. Anything admitted is not in dispute and the plaintiff does not have to prove it at trial.

  • Affirmative defenses: You can also assert an affirmative defense, which is a legal defense to the plaintiff’s complaint that basically says that even if you did what the plaintiff said you did, you have good legally recognized reasons that relieve you from responsibility.

  • Counterclaim: You assert a counterclaim in which you allege that the plaintiff is really the person responsible for the incident. You can even assert a counterclaim for other disputes between you and the plaintiff.

  • Cross-claim: You can serve a cross-claim in which you allege that you’re not responsible for the incident but some other defendant is.

  • Third-party action: You can bring a third-party action against another person who the plaintiff did not name as a defendant in the suit, but who you claim is really the person responsible.

How to answer in the affirmative

If there’s no way to deny what you did, an affirmative defense may be your best defense. Affirmative defenses are arguments such as the following:

  • You already paid the plaintiff everything she was due.

  • The plaintiff waited too long to sue and the statute of limitations has run out.

  • The contract had to be in writing to be enforceable in court and it wasn’t.

  • The plaintiff isn’t licensed and is legally required to be to bring a claim or collect money.

  • The complaint fails to state a cause of action — a set of facts that gives the plaintiff a right to sue you.

These all are defenses that, if you establish them satisfactorily in court, can have the compliant dismissed.

Make a motion

Another avenue available to you as a defendant in some small claims courts is making a motion. A motion is a request to the court for some interim relief, which is a request to the court to take some action in the case before the trial.

In some small claims courts, motions are either not permitted at all or can only be made with the permission of the court. In other words, you have to make a motion to get permission to make a motion.

If you’re represented by an attorney, and your lawyer believes you have an affirmative defense — you know a legal reason why the case should be dismissed — you or your lawyer can say to the judge, “Your honor, there is no legal reason to continue this case. Please dismiss it,” and forestall a trial altogether.

Say the plaintiff loaned you, her no-account sister-in-law, $1,000 ten years ago to use as bail money. You never paid her a dime in return. She recently divorced your brother, so she has no compunction suing you now. The case would be barred by the statute of limitations in most states, because as a contract claim the plaintiff only had six years to sue.

As the defendant, you can make a motion to dismiss on that basis. It would be successful even if the plaintiff produced proof of the payment to you and a promissory note from you.