Thursday, November 12, 2009

Representing Yourself in Small Claims Court

If I am doing my job correctly, none of my clients should get sued in small claims or any court, but sometimes it happens. Sometimes you have to sue someone or a business in small claims court. Recently I have received a lot of phone calls seeking counsel on how to proceed in small claims. While in most states you are not permitted to be represented by an attorney in small claims, you are allowed to consult an attorney outside of the small claims court and in preparing your case.

The key to success in small claims starts with the law and facts being on your side, but more importantly it is more about being organized and how you present your case. It is easy to snatch defeat out of the jaws of victory by being unorganized and ill prepared. The following are a few tips to help you successfully represent your business in small claims court.

BE ORGANIZED – Just like an attorney, you need to present your case in an organized manner. Every judge knows that the parties in court are not lawyers and are usually nervous, if not terrified. However, having exhibits and documents organized makes the chances of success much higher because it makes the case go smoother, especially if you are trying to collect money on an account.

WITNESSES – Witnesses can appear in small claims court and can testify in front of the judge. Because witnesses are perceived as having the ability to be impartial, their testimony can be valuable for the judge as he or she conducts the hearing to gather evidence for the decision. Some states (but not all) allow witness statements to be presented to the judge; these statements have to be in writing and signed under “penalty of perjury.” Most judges prefer to have a witness physically present in the courtroom; it is easier to cross-examine a witness than it is to cross-examine a written statement.

LOOK AND ACT PROFESSIONAL – Despite the relative informality of small claims court, it is still a professional place. Being well dressed and professional makes a good impression on the Court. The courtroom employees, from the judge down to the court clerk, are all dressed in a professional manner. If you are appearing before the Court, you should also be dressed professionally.  If you can’t afford a nice business suit, at least put on your “Sunday Best” outfit. Do not go to court in jeans, t-shirts, a hat and/or tennis shoes.

BE COURTEOUS – The Courtroom is not a place to pick fights with your opponent. It is also not the place to “talk over” anyone else. Most importantly, it is not a place to argue with the court. This is very difficult for people in emotional cases but a very important thing to remember. The Judge is there to resolve a dispute and it is difficult to do so then the parties are arguing in the middle of the case. All the court is interested in is the facts. Be prepared to go into court with the idea of presenting your cases and countering the other side in a respectful and dignified manner.

DO NOT OVERSTATE YOUR CASE – Make sure that your facts and damages fit what you are suing for. Never lie or “over exaggerate” anything. I have heard of instances where counterclaims were filed in breach of contract cases for “pain and suffering” just because they were sued. People have also padded their damages claims just to get back at the other side. Small claims cases are usually straightforward claims for compensation. Filing for extreme damages will weaken your case and your credibility. Also, adding irrelevant claims diminishes the effectiveness of the relevant claims. It is a very good idea to run your case by an attorney first to determine which claims you should file.

TRY TO SETTLE – Once a matter is heard in small claims court, you lose control of the outcome. Settlement is always an option up until the day of trial. In fact some courts encourage the parties to “mediate” the case on the day of trial. Sometimes this is a good option. Even if you get all of your damages from a Judge, you have to collect the judgment. If you work out a settlement before trial and the party pays you that day, you have the money in hand. The Judge may even do a settlement on the record for you.

Many states and counties have Small Claims Help Centers or websites that have specific information about their courts and procedures. I highly recommend that you avail yourself of these resources. The California State Bar Association has a great pamphlet on Small Claims Court and it can be downloaded at the link below.  If you can’t find any resources were you live feel free to contact me at dja2@dja2law.com or (714) 795-0930 and I can help you out (for a nominal fee of course).

http://www.calbar.ca.gov/calbar/pdfs/publications/Pamphlets-Small-Claims-2006.pdf

© Daniel J. Alexander II, APC 2009

Saturday, November 7, 2009

Legal Health Checklist

Staying in shape means more than physical well-being. Your legal health can be very important. If you keep fit, you can avoid problems that could be very costly in terms of your time and money. This post is designed to help you stop legal problems before they start. The checklist also gives you general, non-legal information about some of life’s happy and not-so-happy events.

I am often asked by my clients for advice on everyday issues and transactions that have legal ramifications.  I often consult the "Legal Health Checklist" that was published by the California State Bar Association.  I have posted a link to the check list below.  It is designed to assist the public analize the legal ramifications of everyday life issues.  This is a great resource and I encourage you to print it and keep it with your important papers.  If you have any questions about any issues raised in this checklist, please do not hesitate to contact me at dja2@dja2law.com or (714) 795-0930.

http://www.calbar.ca.gov/calbar/pdfs/publications/LegalHealthChecklist_2006.pdf

Why Do I Need A Personal Family General Counsel

For generations, wealthy families have had personal family lawyers to help them maintain their wealth, get junior out of jail after a DUI, advise them on real estate transactions, set up their estate plans, and help “fix” things like Michael Clayton. In the past three to four years, I have been asked by my business clients to help them with personal family matters. That is why I developed my Personal Family General Counsel practice. Like my duty to counsel my business clients, as a personal family general counsel, my job is to counsel Family, Inc.

A Personal Family General Counsel is a trusted advisor who helps your family make the very best family, financial, and legal decisions and is there to counsel and guide your loved ones when you are no longer around. A Personal Family General Counsel is akin to the “Family Doctor” from back in the day. Whenever someone in your family was sick, you called your family doctor. If your family doctor could not cure you, he or she referred you to a specialist. As a personal family general counsel, I do the same thing. It is very similar to my business “Out-House General Counsel” practice. I serve as general counsel for your family.

This is all about relationships. Back in the day, before lawyers became all about the billable hour, form documents, and transactions, the local lawyer was who mom and pop turned to for guidance throughout life's ups and downs. You knew your family lawyer and your family lawyer knew you. My goal is to bring those attorney-client “relationships” back. If you woke up tomorrow with a serious family legal issue, who would you call? If you don’t know, consider calling me, your Personal Family General Counsel. Please follow this blog, as I will endeavor to provide you with helpful information to help you and your family. I can be reached at dja2@dja2law.com or (714) 795-0930.

© 2009 Daniel J. Alexander II, A Professional Corporation