Clearing the Way to Small Claims Court

Filing a lawsuit is one method to protect your property, collect debts, enforce agreements or punish wrongdoers. But before you run down and stand in line on the courthouse steps, get ready for what often is an aggravating, time-consuming, expensive experience.

Even if you only plan to sue in small claims court--a relatively quick and simple, lawyer-free place--you should always try to resolve disputes out of court first.

Whatever the dispute, whether an auto-repair shop overcharged you, a kitchen appliance is defective or your neighbor’s dog chewed up your patio furniture, you may be able to reach a settlement for money damages without going to court.

Contact the Adversary

First, contact your potential adversary and try to discuss the dispute. If that doesn’t work, send what lawyers John M. Striker and Andrew O. Shapiro call the “settle or else letter.” In their book “How You Can Sue Without Hiring a Lawyer,” these New York lawyers suggest you state your grievance, demand compensation and then threaten to sue.

When you write the letter, write it as much for the judge as for your adversary. It may be admitted in small claims court later, so you want it to contain an accurate, succinct account of your story, as well as to show how reasonable you’ve been.

If the potential defendant is willing to talk settlement, be reasonable and tough all at the same time. It is probably not a good idea to accept the first offer, no matter how generous it sounds. (You should decide in advance how much you will be willing to accept.)

Stay calm. Don’t get angry. And don’t get personal. You want to work things out, not alienate the other person. Try to get the other side to make the first offer.

If settlement doesn’t work, you can always sue. Superior court is for disputes in excess of $15,000, and municipal courts handle cases up to $15,000, but in either case, you’ll probably need a lawyer, which can be expensive.

You can sue in small claims court for up to $1,500. That doesn’t mean you can’t bring a case worth more, but that is the maximum you can recover.

In other words, if the fair-market value of the patio furniture ruined by your neighbor’s dog is $2,500, you can still sue in small claims court, but the most you can win is $1,500.

Last year, a proposal to increase the maximum recovery in small claims court was defeated in the state Legislature. However, proponents have launched an initiative drive for the November ballot to increase the small claims court recovery to $10,000. For more information, contact Nolo Press, one of the organizers, at (415) 549-1976.

If you sue a business, make sure you have the correct legal name of the company that operates the business, not just the retail name on the sign in front, to make enforcement of the judgment easier.

But before you sue--and this is extremely important--make sure that you’ll be able to collect. Just because you win doesn’t mean the money will magically appear in your hands. Your adversary still must comply with the court order. He or she may not have the money at the moment, may try to string you along or may simply be “judgment proof”--a nice lawyerly euphemism for “broke.”

Check Possibilities

Sometimes in the heat of a dispute, you forget that the goal of suing is to get paid, and the legal exercise is not worth the trouble if there is no gold at the end of the rainbow.

So before you sue, make sure that the defendant is gainfully employed, so you’ll have some wages you can garnish if you get no cooperation. You can’t garnish a welfare, social security or unemployment check.

You can also collect a judgment, if you win, by going after other assets, such as bank accounts, shares of stock or real estate. And a small claims court will help you find out about such assets eventually, but by then it may be too late, if it turns out your opponent doesn’t have anything and you’ve spent some frustrating months in and out of court.