Read the Complaint

Whether you are the person who filed the case (the “plaintiff”) or the defendant, you should reread the complaint. This is the document that the judge will have in front of him or her. S/he will be looking for an explanation of all of the items noted in the complaint. Your first task is to prove (or disprove, if you are the defendant) what was alleged in the complaint.

Then ask yourself the following questions:

  • What evidence do I need to prove (or disprove) the statements? How can I find the documents or witnesses?
  • What has happened since that time that might be relevant? (For example, has the other side made a partial payment on a debt owed to you? Have you mediated the case? Are there additional damages?)
  • Does the complaint tell all the key elements of the story?

Find copies of contracts and any other written communications between you and the other side

If you have a contract, read it. You can be sure that the other side has done so. The judge will expect both parties to be familiar with the contract. There are certain legal elements that must be proved if your goal is to enforce your contract. If you wish to show that the contract is not valid, you must explain why (disproving the same elements).

It is also helpful to look at any of the other letters or emails between the two of you. Have they made any offers? Can you settle before court? Did the other side admit anything that supports your case? Do they give you insight into the argument that the other side will make? If so, how can you prepare to counter these arguments?

Analyze the strengths and weaknesses of your case

If you are the plaintiff, review what you must prove in order to be successful. Do you have the evidence to persuade the judge? What can you do to address the weaknesses? Write down each item you must prove and put how you will prove it next to each item. Would it make sense to try to reach a settlement before the trial?

If you are the defendant, review what the plaintiff must prove. Look at each of the elements that the plaintiff must prove. Write down each item and list the evidence that you think the plaintiff will gather. For each of these elements, write down the weaknesses that you can exploit to undermine the other side’s case.

Be honest with yourself. If the plaintiff cannot prove all of the elements of the case, s/he will lose. On the other hand, if there is a good chance the other side will win, look at what you can do minimize the damage award.

Prepare your documents and evidence for trial

Once you have identified all of the important documents and any physical evidence that you plan to bring, prepare them for trial. Organized documents will help you be calm in court. You cannot be too organized.

  • Prepare copies for yourself, the other side, and the judge. Keep the originals in a separate folder. If there are multiple parties on the other side, you should prepare copies for each party.
  • Do not give any original documents to the judge or the other party unless the judge specifically asks you to do so.
  • On your copy of each document, highlight the important points that you wish to make using each document. During the trial, this will help you to find the information on each document when you need to point it out to the judge or the other side.
  • If you have more than 3 or 4 documents, you may wish to put small labels on the side of each document so you can find it more easily when they are in a binder or folder.
  • Staple the pages of a single document together. Clip related documents together. If this seems like too much work, just imagine if you dropped all of the documents on the floor. Will you quickly be able to reorganize it?
  • You may even want to put your copies of the documents in a notebook. Put the documents in the same order that you expect to use them to support your side of the story.

Identify and prepare any witnesses

Once you have looked at the legal elements that you must prove, think about whether there are any witnesses. A good witness will:

  • Be able to support a key point in your case;
  • Have “first hand” knowledge of that key point;
  • Not have a reason to lie about the situation;
  • If you need an expert, have the correct expertise; and
  • Be able and willing to testify on the day of the trial.

There is no reason to bring in a witness unless the person can support a key legal point. Especially in small claims court. The judge will want to move the case along as quickly as possible while making sure it is fair. This means that you will not want to waste time on bringing a witness in to prove a minor point.

The witness should have seen, heard or otherwise experienced whatever you want the witness to prove. You do not want to use someone who knows about the problem or incident only because you told them about it. They will not help your case.

Ideally, you want to have a witness who has no incentive to lie for you. For example, your mother may be considered a less credible witness than a local mechanic when you want to show that your car was damaged.

Practice, Practice, Practice your presentation

Once you are started, your story will flow easily, especially if you have a few notes in outline form and your documents are organized in the order you plan to mention them. Indicate on your notes which documents you have to prove which point. You may want to number your documents to help you keep track of them.

If you are the plaintiff (the person who filed the complaint)…

Put your notes on index cards or write them out in advance on a paper pad and bring this with you to your hearing. It is better to have a few key points written down than it is to have a “script” with every word you want to say. Remember that the judge will not have a script nor will the other side. You know your story. You just need a few reminders to make sure that you make all of the necessary legal points.

Tip Experienced presenters and attorneys know that it is useful to have the first few sentences written out in full and then to practice these in advance. This will help get you started.

  • You will speak first. You will need to tell the judge your story. Remember, there are certain legal elements that you have to prove.

Practice in front of a trusted friend. It may be best to pick a friend who has not heard you talk about your legal issue. It may be helpful to hear the comments of someone who is new to situation. Before you begin, tell your friend what you have to prove (legally). Then ask them to listen only to what you say and what your documents or witnesses can show. Ask them to forget anything else they know about the situation.

Ask them to give you harsh and unbiased feedback. Specifically:

  • Ask them to see if you told or showed them enough to persuade them that your version of the story is the more correct one.
  • Ask them to question you about the areas that they think are weak or unclear.
  • Give your friend a copy of the complaint.

Based on their feedback, are you making assumptions about what the judge might know about your case?

Do you need to provide a better “map” to help the judge follow the legal elements that you need to prove? The judge will be looking for certain information. Make it easy for the judge to see the important parts of your case.

If you are the defendant (person who was sued)…

  • You will speak second. The other side will have laid out a series of facts. You do not have to repeat these facts. Assume that the judge heard and understood the facts, even if you do not like the way the other side said it.

Focus you comments on your defense. Do not dispute every little issue, focus on the most important points. You should have prepared yourself by looking at what the other side had to prove. That will help you determine which points are worth disputing.

Always, be polite to the other side.

Source: 

A special project of the Eastern Shore Regional Library under a Library Services Technology Act grant from the Division of Library Development Services/MD State Department of Education (author: Ayn H. Crawley)

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Is this legal advice?

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