Tenant-landlord disputes often end up in Small Claims Court. This court handles tenant-landlord disputes such as evictions, replevins of property, and money suits for amounts under $10,000. It's important to remember that this court is designed to help regular folks resolve money-related issues. To help navigate the process, the courts have created a helpful guide called the Wisconsin Guide to Small Claims Court. Additionally, the State Bar of Wisconsin’s "Small Claims Court" webpage has valuable videos and answers to common questions. This article overviews the process, evidence, strategy, and helpful tips. Dane County’s Small Claims Court has many forms and instructions available online.

Many people reach out to TRC fearing the small claims process. We hope this article helps to reduce some of those fears.

Please note that we are not attorneys at TRC and this isn’t legal advice.  If the tips listed don’t feel right to you, ask for more information from a trusted source. You can also reach out to an attorney – TRC’s referral list is here.

Small Claims Court Tips

You don’t need to be a lawyer to win in Small Claims Court. The court is set up so individuals don’t need an attorney to be successful. If you want legal advice or an attorney to represent you, you can hire an attorney. Our attorney referral list is here. You can also reach out to the Small Claims Assistance Program for assistance.

Some, but not all, small claims courts are informal. The Wisconsin Guide to Small Claims Court says, “the rules in small claims court also are simpler and less formal.” However, not all judges are informal. There are 72 counties in Wisconsin, and hundreds of judges. They each have their own preferences and techniques.

You can watch other people go through small claims court.  Each county in Wisconsin has a clerk of courts. You can call the court for your county, ask when small claims cases are going to be heard, and either watch the cases online if they are virtual or at the courthouse if they are in person. The cases are public, and you can get a sense of how judges or court commissioners handle cases.

Scheduling. If you believe that your case is going to take a longer time than the amount scheduled for it, you can call the clerk of courts and ask for additional time. It is important to be reasonable because there may be many hearings scheduled on the same day.

Opening and Closing Statements: Often, because these matters are informal, judges will start proceedings in a very informal way. Once things look like they are starting, you can ask to make an opening statement. If you want to give a statement, you will want it to be a very short overview. Something like: “This is a security deposit case, and we're challenging it.” Or: “My security deposit wasn't returned within 21 days, which is a violation of ATCP 134.06(2)a.” Like the opening statement, you can ask to make a closing statement to link your proof to the law. For example: “Since violations of ATCP 134 are considered unfair trade practices, Wis. Stat. 100.20(2) allows tenants to seek double damages, which I am doing.”

To prepare, make a list of things you want to say. This will help you to remember what points you need to make and to help you stay on point. If a landlord is evicting a tenant for nonpayment of rent, the tenant will want to raise any dispute about whether rent was actually paid or how much was owed if that applies to their situation. Other disputes between the landlord and tenant may not be relevant to the particular issue before the commissioner or judge.

Bring three copies of the laws and three copies of any proof.  It’s a great idea to get things in writing to make sure you have that proof. Other proof can be pictures, videos, witnesses, screen shots from a phone, and recordings. Some of this may be complicated to present in court (for example, the laws on hearsay are here). If you bring three copies, one will go to the judge or court commissioner, one copy with go to the person that you’re arguing against, and one copy will stay with you. It is also a good idea to number the pages and have your documents in order.

Prepare any testimony you want to present. Testimony is where a person at court speaks to their personal experience about the situation that has occurred. Each party can ask questions of all witnesses giving testimony.

Practice what you want to say. A lot of people are nervous when they go to court. It’s okay to say that you’re nervous, to shake as you’re handing out sheets of paper, or for your voice to quaver. Try to stay as calm as you can, though, and go ahead with what you need to say. You may want to practice in advance to try to ease your nerves.  

You can object. Parties can object to things that are happening in the courtroom if they have to have a good reason to do so. Here's a list of objections and an explanation of what each means and some of the rules for Small Claims Court.

Making a record. If you believe the judge made a decision that is contrary to the law, make sure that is on the record if you decide to appeal the decision.

Appeals. If you get a small claims judgment by a court commissioner that you do not agree with, you can ask for a full trial with a judge. You can present the same argument to the judge during the trial. The other side will have the same opportunity. If you disagree with a judgement by a judge, the appeal goes before the Court of Appeals. The Court of Appeals reviews the arguments from parties about the court record and will review if there were errors in the Small Claims Court process or application of law.

Ask questions. Court proceedings can be very fast and confusing. If you don’t understand something the judge or commissioner says or something that is happening, it is ok to respectfully ask for clarification.

Be respectful.  Dress like you’re going to a job interview and do your best to look clean and put together. Avoid shouting or swearing. It is a good idea to turn off your phone so you do not interrupt the court proceedings. Many courts have rules requiring all phones to be off.

If you have more questions, it’s always okay to send a question our way. 

Fee Waiver in Small Claims Court

Across Wisconsin, if someone is low-income and cannot pay the filing fee to file a suit in Small Claims Court, they can fill out Form CV-410A and Form CV-410B. These forms, and instructions for filling them out, are available online.

You may be eligible for a fee waiver if you receive:

• Supplemental security income (SSI)
• Relief funded under §59.53(21), Wis. Stats.
• Medical assistance (such as BadgerCare)
• Food stamps/FoodShare
• Relief funded under public assistance (such as the EA grant through the county)
• Benefits for veterans under §45.40 (1m) or 38 USC 501-562
• Legal representation from a civil legal services program or a volunteer attorney program based on indigency (in Wisconsin, this is usually Legal Action or Judicare)
• Other means-tested public assistance (such as subsidized/public housing, Section 8 voucher recipient, W2, etc.)

Discovery

Discovery is a procedure to get evidence before trial. Wisconsin Statutes Chapter 804 sets out the laws for discovery in Wisconsin courts. Discovery allows you access to evidence before trial so you have time to review it and prepare. If the other party doesn't respond to your request, the court can intervene. Information about the process is available in the Wisconsin Guide to Small Claims Court.

When someone files a claim in court, either party can ask the other party for evidence about that claim. Anything you ask to see or do must reasonably seem like it will lead to helpful evidence. You can't ask for things you easily have access to in other ways or that are not relevant to the case. Here are some of the kinds of evidence you can ask for (from Wis. Stat. 804.01(1)):

• You can ask that someone respond to written questions.
• You can ask that the other person or party give you copies of documents or objects or photos or video.
• You can ask for permission to enter upon land or other property, for inspection or photographs.

For example: A tenant may ask the landlord for receipts they have for repairs. A landlord may ask the tenant for a copy of the payment plan that they made with the utility company. A tenant could ask the landlord to respond to the question: “Did you replace the carpet? If so, when and what is the name of the company that did the work and their phone number?” A landlord may subpoena a witness to testify about the damage in an apartment.

If you are not sure what the timeline is for when requests for discovery must be made by or when to respond, you can ask the judge for that information or reach out to the Dane County Small Claims Assistance Program.

Discovery Tips

Send a letter on your own. You can send a letter to the other party requesting discovery. Write a letter, asking for the evidence (or access to evidence) that you want. Send it through regular snail mail. Make sure you date your letter, and keep a copy, and note down on your copy the date you put it in the mailbox.

File a motion with your county court. If the other party (the person that you sent the letter to, asking for the evidence) doesn’t reply, then you can file a motion in court. You go to your county courthouse and file a “Motion for Discovery.” This Motion for Discovery asks the court for what you’re hoping that the other party will do (example: issue an Order requiring the other side to answer your discovery request). You attach a copy of the discovery request, along with your statement about their failure to respond. Once filed, this whole paper trail will become part of the case file. In Dane County, you can get information on how to prepare your own motion from the Dane County Law Library, in the courthouse.

You can use a subpoena. Another option is to subpoena the other person using Wisconsin court forms. That form requires the other person to testify at trial about information related to evidence for the trial and/or bring documents or evidence to court with them. 

You can ask questions in court. Small claims is set up to be handled by people without attorneys, and without knowledge of formal legal processes. If you are in court, you can ask that the other party show evidence for statements that they are making.  

Rules for people who are in prison. Many of these rules of discovery are very different for folks in prison. So, if you are in prison and you want to gather evidence from the other party in a case, you need to follow the rules in Wis. Stat. 804.015.

← Back to Eviction.

If you read the pages that we write here, you know that many say something along the lines of, "if your problem is this, and the law says this, then write a letter and worse case scenario, sue the other party in Small Claims Court."

We do this because tenant-landlord law is mostly set up for folks to go to court and get payment for losses if they can't find another way to resolve the problem. This allows a judge to make a decision about whether or not laws were followed, and who, in the end, should be paid. 

Often, our lowest-income clients are reluctant to go to Small Claims Court. However, they usually don't know that Small Claims Court allows low-income folks to file without paying any fees for filing or service. So, filing can be free, and the only thing you have to lose is the money you don't sue for.

One of our favorite attorneys came in recently, and talked the housing counselors through some murky legal issues. One of the topics that blew my mind was: folks in small claims court can ask the other party (as they sue/are being sued/are one of the people in a small claims case) for the evidence that they are using. Since small claims court is the place of last resort for many tenant-landlord issues, finding out there is a way to make that process be clearer/better/more in line with the facts is kind of amazing.

Now, I'm not a lawyer, and I had secretly kind of believed that "discovery," the procedures used to obtain disclosure of evidence before trial, were something that were: A. Only used on tv, B. Especially only for criminal trials and C. Something only lawyers can do. Turns out none of those things are true! Discovery is the tool of the masses! Here's how to do it.

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!

The end result of many tenant-landlord disputes is small claims court.  Evictions and money suits for amounts under $10,000 are both handled in small claims court, making it the place where landlord-tenant arguments end up if there aren't any other negotiation options.  Many people come in fearing the small claims process, but it doesn't have to be that way.