When You Need a Lawyer for Your Small Claims Case
It’s usually better to determine whether you need a lawyer upfront rather than waiting until you’re embroiled in the middle of the small claims case and asking someone else to sort out the mess. You may want to check with your local county bar association to see if it has lawyers who will provide free consultations.
When the defendant has a lawyer in small claims court
If you find out that the person you’re suing is using a lawyer and you aren’t, your first thought will probably be that you need a lawyer, too. After all, you don’t want the defendant having what seems like the unfair advantage of professional help.
If you start your small claims case without an attorney, and the defendant hires counsel, generally the court will give you the right to get an attorney if you want. For example:
You sue the defendant for damage to your car in a fender-bender accident. The defendant shows up with a lawyer because under his automobile insurance policy, the insurance company has to defend its insured on all claims. You may then decide to hire a lawyer as well.
In a fender-bender accident, the defendant files a counterclaim, asserting you damaged his car. In this case, you should contact your insurance company to defend you on the counterclaim.
You may end up with a situation in which you have no lawyer on your claim against the defendant, but the defendant has a lawyer defending your claim. The defendant has no lawyer on his counterclaim against you, but you have a lawyer defending you on the defendant’s counterclaim. Simple, right? No wonder people are afraid to navigate the legal waters without legal help.
If you want to delay because you’re not ready, saying that you now want a lawyer isn’t a good tactic. The judge may decide you had ample opportunity to get an attorney and deny your request. The court can give you options: going forward without a lawyer; discontinuing your case without prejudice, meaning you can bring it again; or discontinuing it with prejudice, which means you can’t bring it again.
When you sue a corporation or business in small claims court
If you’re suing a corporation or business, it’s prudent to hire a lawyer if possible. Because businesses entities are not living, breathing individuals, but legal entities, many states mandate that they have a lawyer present in all court proceedings.
Even if you’re not using a lawyer for court, speaking to one can be helpful if you need guidance on finding the real name of your defendant, because the name on the door may not be the legal name of the business.
If you’re suing a corporation, be prepared to encounter a lawyer — or team of lawyers — on the other side because of the general requirement that corporations be represented. The fact that a corporate defendant may be required to have counsel may prompt you to consider whether you should have an attorney when you start the litigation.
Some states waive this requirement of counsel for small claims court and permit all corporations to represent themselves just like individuals. Other states limit the waiver only to small “mom and pop” businesses who are corporations only for liability or tax purposes.
If you’re the representative or head of a corporation or a similar entity, and either bringing a lawsuit or forced to defend one, check the specific rule of the small claims court in your state as to whether or not you need to be represented by an attorney.
In some states, the small claims rules prohibit you from having an attorney as the plaintiff but require the defendant as a corporation to have a lawyer. This probably doesn’t seem fair to you. However, as the person bringing the suit to small claims court, you have to abide by the rules. After all, you could’ve brought your case in regular civil court and had a lawyer.
The court has different rules for different parties and different circumstances, such as:
If you’re a business required to be represented by counsel in litigation, and you didn’t know that when you answered the complaint, in all likelihood the court would advise you of that requirement and give you a short adjournment.
You will not be permitted to defend the suit yourself; if you choose not to use a lawyer, the person bringing the suit will automatically win. This is because the law required the business to have counsel and if it doesn’t it is as if the business is not present in court.
If you’re the person bringing the case to court and don’t get an attorney when you’re required to have one, your case will be dismissed.
When you sue a government agency in small claims court
An attorney may have to appear in court to defend a lawsuit involving a branch of the government or a governmental agency. If you sue an official entity, the government or the governmental agency may be required to be represented by counsel.
Because of the governmental immunity doctrine, you may not be able to sue the government, especially in a place like small claims court. Some states require lawsuits against the government or one of its agencies to be brought in specific courts or parts of the court. So your first encounter with the defendant in court will probably be an application to dismiss your case or transfer it to another court.
It’s unlikely that the government can bring its own case in small claims court as a plaintiff because the court is designed primarily for individual litigants.