A Small Claims Strategy - Tenant Resource Center



A Small Claims Strategy

I have theories about why summer is our busy season here at the TRC: temperatures go up and so do tempers. Many leases end here in Madison in August, leading to that sense of I-only-have-one-month-left-and-it's-unbearable.

But whether or not I'm right, it seems like the folks we talk to are a little feistier than the rest of the year, and we have more conversations about what to expect if you end up in Small Claims Court. Since that's the last resort for many tenant-landlord disputes, and since more cases look like they're headed there. 

Today, I'm talking about a strategy (a way of structuring your trial) that some folks use if they're headed to Small Claims Court - who knows, it might work for you!

So, we've talked about Small Claims Court before! Here, with Small Claims Court Tips. Here, with information on Discovery. The Wisconsin Court system has a guide for Small Claims Court. And also, for the record, we are not attorneys. We're not ordering you to do it this way, and we're not even saying you should. It's an option, and if it doesn't feel right, then talk to someone you trust. Here's a list of attorneys, in case you're in need of one.

---

Why would I want to do it this way? A bunch of folks come to us asking about Small Claims Court. This is a structure for anyone to use in Small Claims Court, but there are many other successful and valid ways to go about it, so if you want to do it differently, great. You can get more information by just going in and watching suits in Small Claims Court (they're public - call your local Clerk of Courts and ask when they'll be hearing cases). You can call an attorney who could represent you, or try to help figure out the best way for you to do it on your own. This is simply a way for people to organize their thoughts before they get into court, since we find that the folks that are the most organized are the most successful, since they've already thought about what they hope to say.

Scheduling: If you know that your case is going to take a long time, you can call the clerk of courts and say, "I think this case will take a while, can you please schedule us for a time where we can take at least 45 minutes?" (Or, obviously, however long you think it'll take. Be reasonable so that they'll take your request seriously.)

Preparation:

  • Bring Paper: Find as much written, physical evidence as you can, for the issues you are disputing. (For example: in a security deposit case, you'd want to bring copies of the check-in and check-out forms, the receipt for security deposit, photos, written correspondence, as well as copies of relevant laws.) Look for all this stuff ahead of time (your phone might break! Your kiddo might spill juice on your pile of papers that you need to sort through!), so that you can know what you need and what you don't need, as well as what you can assert, and what you don't have the evidence to back up.
  • Make copies: Bring 3 copies of everything (one for you, one for the other party, one for the judge). Bring 3 copies of the statutes, too.
  • Write out things you want to say: If you choose to follow the structure below, then write out your opening and closing statement. Time it. Make sure you aren't including things that make you look ridiculous. Don't swear. Practice saying it out loud.
  • It's okay to be confused: Even before you go in, know that it's okay to be unsure about what's happening during the trial. You can always (respectfully) ask the judge to help you understand when to say things, when to show things, and what to do.

During the Trial:

  • Opening Statement: Often, because it's informal*, judges will get things started in a very informal way. ("Are we all here? Okay.") Once things look like they are starting, you can ask to make an opening statement. You'll want to give a very short overview. Make sure it's less than 2 minutes. Something like:
    • General overview. For example, "This is a security deposit case, and we're challenging it."
    • Relevant statutes. For example, "The deposit wasn't returned within 21 days, which is a violation of ATCP 134.06(2)a." 
  • Testimony: Testimony is where you are speaking to your personal experience about the situation that has occurred. You don't want to mix legal stuff up with testimony (you don't want the judge thinking that your links to the law are themselves your personal experience). So, say the things that you saw, and give copies of the evidence that you gathered. Try to be short and sweet. Don't ramble, if you can help it. The other party is allowed to ask you questions during your explanation of your experience, just as you are allowed to ask the other party questions about their testimony. (Some examples of testimony might be: "This is how bad it was." "I took this photo.")
  • Evidence: If you bring evidence, you can present it before or after your testimony. Bring 3 copies of all papers. (We talked about Discovery not too long ago - it's one way to get access to evidence). 
  • Closing Statement: Like the opening statement, you can ask to make a closing statement. This is where you link your testimony to the law. (Something like: "My testimony shows that Wis. Stat. 704.07(2)(a)2 was violated." "Since violations to ATCP 134 are considered unfair trade practices, Wis. Stat. 100.20(2) allows the consumer to seek double damages, which I am doing.")

If there's a problem during the trial:

  • You can object: just like in the courtroom television shows, you can object to things that are happening in the courtroom. Now, you have to have a good reason, so here's a list. One of the main reasons for objecting might be about the evidence that the other person is presenting - here are some of the rules for evidence at Small Claims Court.
  • If the judge doesn't follow the law: If you think the judge is deliberately ignoring a piece of the law that you believe is relevant and valid, then you can say, "just for the record, your honor" and ask that the ignored statutes be noted on the record, so that you can appeal.
  • If you are confused about the process: you can ask the judge a question. Something like:"I'm confused, your honor. I want a chance to tell you about the laws that are relevant to this situation. Can you tell me when would be a good time to talk about those?"

 

----

* A note about the informal nature of Small Claims Court: The Wisconsin Court guide to small claims says, "the rules in small claims court also are simpler and less formal." However, not all judges do small claims in an informal way. There are 72 counties in Wisconsin, and hundreds of judges. They each have their own preferences and techniques, so we really aren't speaking for all of them. You may walk into a courtroom and be surprised with the confusing and formal nature of proceedings, which is all the more reason to be really prepared ahead of time.

** Did you know that if you get a small claims judgment by a court commissioner, and you don't like that judgment, then you can ask for a full trial with a judge?  It's like a do-over!  You can present your same argument to that judge during the trial and see if you can do it better.  Of course, the other guy gets that choice, too, so be aware that going in front of a court commissioner might lead to doing the whole rigmarole again in front of a judge.  This is much different than appealing a Small Claims judge's decision - that goes to the Court of Appeals where they don't look at the same argument, but rather, they review the court record to see if there were errors in the Small Claims Court process or application of law. (This is only helpful if your case was heard originally by a court commissioner. If it wasn't - if your case was heard by a judge - then this doesn't apply to you. Sorry.)

Do you like this post?
Help keep our services free for everyone! Can you donate a few dollars a month?

Tenant Resource Center