Many ask: “why is a Los Angeles car accident lawyer saying go to small claims court?”
First of all, I don’t recall saying that. But are you tired of Farmers, GEICO, State Farm, and Mercury, etc.? Then read on. Many consumers are sick of adjusters. Many lawyers won’t even sign a rear-ender with whiplash anymore. So these agents treat soft tissue case like they are worthless.
Or they may say it is “worth less” than you or your attorney thinks. In that case, you should consider this option.
Using small claims court allows you settle insurance disputes legally. And typically it gives you a lot of leverage. At this point, you can get the greedy insurance company to pay extra. And they risk a case tried to a judge.
And like anything else in life, if prepared, you have a chance at winning. In this article, I cover basic preparation. Also, I’ll include the advantages and problems of this process. Handling car accidents as small claims actions may be the way to go. In particular, this article deals with low impact, soft tissue claims.
The idea is to skip a lawyer. Also, you can miss regular court. Most of all, you don’t pay an attorney’s fee. So instead of taking the offer, you can fight the insurer.
Advantage 1: Small Claims Court Sets Grounds For a Bad Faith Lawsuit
One advantage of filing a soft tissue small claims case is leverage. The defendant gets no attorney, and neither do you, the plaintiff. Because of the suit, the defendant must litigate their own case. And this is because the insurer refused a reasonable settlement.
Insurance companies have a duty to settle claims reasonably. But they try and settle for MUCH lower than they are worth. They know personal injury attorneys will have to file a lawsuit (about $500). And we have to do written discovery (10-25 hours). After that, we take depositions ($1000 plus driving, travel, etc.).
To top it off, we will be under pressure to settle. And many times the offer is too small. So it cannot even cover medical expenses. Worse, you still have to reimburse the attorney their costs. And you must pay them their fee of a third to forty percent.
Their attitude [the insco] is “whatever.” So if they refuse a reasonable settlement, they are open to a suit. This happens if a judgment exceeds the coverage. That is when the defendant can sue their insurer. Bad faith law deals with cases like that.
In a small claims case, a judgment gets entered against the defendant’s credit. So the defendant can sue if proof exists the carrier should have settled.
So a verdict against the defendant can cause trouble. For example, the defendant may complain to the Insurance Commissioner. And the defendant can raise cane with a bad faith lawsuit for damaged credit. Plus they might write negative reviews on Google Places, etc. It can be bad for the insurance company.
Advantage 2: Avoiding Limited, or Unlimited Civil Court Saves
Costs & Credit Risks
In a small claims action, you, the plaintiff, get to have a judge decide your award. You have no jury. And there are no discovery costs (see supra). Also, you can do service via mail instead of a process server. And no attorneys means no attorney’s fees.
The damaged credit score is a potential issue. And that definitely can force these die hard insurance adjustors to pay. They would rather screw the guy who just stands in line and does nothing. They typically are clock punchers. So make em work.
Some Procedures That Can be Helpful in Achieving
the Outcome You Would Like
- What is Small Claims Court?
- Who is Permitted to File a Small Claims Lawsuit?
- Time Limits to File a Small Claims Lawsuit?
- Location to file this Type of Lawsuit?
- How do I File a Claim?
- What are the Proper Procedures?
- How does the Defendant get Notified?
- What will Occur at the Trial?
What is Small Claims Court?
The small claim resolves civil disputes with small amounts of money. The amount for injury claims depends on liability insurance. If insurance exists with a defense duty, it is $7500 or less. And this excludes court costs, interest, and attorneys fees.
If no insurance with a duty to defend, the max amount is $10000 for car accidents. And this is how small civil disputes resolve. But again, this involves a small sum of money. And it gets heard in the county court, civil division.
As an individual you can sue for damages for bodily injuries resulting from an auto accident if your claim is for $10,000 or less, a $7,500 limit applies if a defendant is covered by an automobile insurance policy that includes a duty to defend. (Source).
116.224. (a) Notwithstanding Section 116.221, the small claims court has jurisdiction in an action brought by a natural person for damages for bodily injuries resulting from an automobile accident if the amount of the demand does not exceed seven thousand five hundred dollars ($7,500).
In the state of California, rules of procedure exist for these cases. These are the Small Claims Rules. These rules assist in making the small claims process easier. And it speeds up getting you information.
And for attorney and layman alike, it’s easier than regular civil court. The rules are in the California Rules of Court. Companion rules are in the California Statutes Annotated. And these are at any law library and many public libraries.
Read the Rules!
Before filing a small claims lawsuit, it is important to read these rules. And this is for your information about the process. The aim of the small claims process is to resolve minor civil disputes.
It gets done through the court system. But it bypasses the more complicated and formal judicial process. The trade off is the award for a lower amount.
Who is Permitted to File a Small Claims Lawsuit?
The person filing a small claims lawsuit must be over 18 years of age. And if under 18, they will require a parent or guardian to register for them.
- Small Claims Lawsuit Basics
For claims of more than $5,000, the filing fee is $75. What if another owes you money, or has your property? And what if they refuse to return it? Then you may find a resolution in small claims. But before filing, you should try and talk with the accused. So maybe send them a letter. Then try and resolve the dispute.
But if your queries go unanswered, go to small claims court.
The following are questions you should ask, before filing:
- Did I try with reason to reach a resolution?
- Is this a valid legal claim against the other party?
- Do I have or can I get evidence to prove my court claim?
- Is the amount in question $7500 or smaller? Does defendant have auto insurance? If so, is a duty to defend present?
- Is the amount in question $10000 or lower? Does the defendant have insurance with a duty to defend?
- Do you have the name and right address of the other party?
If the answers are “yes,” the chances are you have a valid small claims lawsuit. So if you are unsure, an attorney could advise you. And a lawyer can tell you if you have a valid complaint. Also, they can explain the evidence you will need to prove your claim. And this is all necessary to win.
If you feel you need an attorney, contact the local bar association. And the California Bar has a free referral service. Also, you may qualify for free legal service. In some cases, pro-bono lawyers help at the local Legal Aid Service.
Location to File the Lawsuit.
You will need to contact the Clerk of Court after preparations:
- In the county, the event or dispute occurred, which led to the lawsuit.
- Location the disputed property is located.
- If it involves a secured promissory note, the lawsuit should become filed in the county payments are received.
- Don’t what county to file the action? Contact the Clerk’s Office. They can offer assistance.
How do I File a Claim?
Lawsuits all begin by submitting a complaint form. This is a “Statement of Claim.” It will get tabled in the clerk’s office. If you need help filling out forms, the clerk can direct you.
If filling out the “Statement of Claim,” provide information in a brief manner. You must detail the facts of the case. Most of all, you need to justify the amount you seek.
Also, you must have the full name and address of the defendant listed. And if the claim has written documents, attach them. Items include notes, leases, repair bills, contracts or other things.
Duplicates of originals should be attached to the form. And a fee goes to the court clerk. And this is known as a filing fee. Last, the amount of this fee gets based on the sum of the lawsuit.
What are the Proper Procedures?
The first step is to fill out the Statement of Claim form. Second, you need to notify the defendant. So you must serve him or her with a copy of the lawsuit. “Service of Process” is how we notify the adverse party.
The notice will have the Statement of Claim attached. And also attached will be a “Notice to Appear,” which is a summons.
And these papers get served in one of two ways.
- The first is having the clerk sent the lawsuit papers to the defendant. This is sent by registered mail, with a return receipt requested. This is restricted delivery to the party only. And it must be signed for, to obtain the letter.
A fee gets paid to have the clerk send the lawsuit by mail. But if you win, it is possible to recover court costs from the defendant.
- If mail service is a bad choice or is unsuccessful, you can pay the Sheriff’s Office. So they can provide personal service. This means the sheriff will try and locate the defendant. Then they hand deliver the lawsuit papers to them. They will do so at their home or place of work. But what if the defendant’s residence is not in the same county? Then you must use the Sheriff’s Office in that county. Using the sheriff to hand deliver things will involve a fee for the service.
If these two methods are unsuccessful, other options may be available. But you must contact the Clerk’s Office.
Notice to Appear
If filing the small claims lawsuit, you should be notified of certain dates. You will need the date, time and place of the pretrial hearing. This is called a pretrial conference. And this is because a trial or final hearing comes later. The pretrial hearing is to determine issues in the dispute.
If the defendant fails to appear, certain things will happen. First, the judge will order a prove-up hearing. Here, the judge must see proof the lawsuit got filed in the proper county. Next, he will check to see if the defendant got notified. Then the court will enter a default against the party.
So the court issues a final entry of judgment against the defendant. And this means the defendant defaulted. But the judge must rule if the damages in the lawsuit are valid.
Cases Can Get Settled at Pretrial Hearing.
If the defendant appears at the pretrial hearing admits fault, case over. And that way, the case can settle right away. So in that case, no trial takes place. But if the defendant is broke, the plaintiff can agree to payments. Then the court may enter a stipulation. So this will make the terms and conditions to settle legally binding.
If the defendant denies the claim at the hearing, the judge asks why. And if the accused fails to have a valid defense, the judge will tell them. Because of this, the court will advise them a judgment could go against them.
If a valid defense exists, the judge may order a mediation. If the judge orders mediation, it could happen at the courthouse. Often it takes place at the time of the pretrial hearing. Most of the time mediators our volunteers.
If the case settles, the mediators set the terms of the settlement. And this is written down. So it gets signed by the defendant and the plaintiff.
If a case won’t settle through mediation, the clerk sets the case for trial. The next step is to inform the judge how many witnesses will testify. The judge can now determine the time needed to hear all of the witnesses. If the parties want to testify, they must include themselves too.
What Will Occur at the Trial?
If the date gets set for the final hearing/trial, you should get prepared. Preparing includes having all of the evidence you will present at trial. Also, it lists any documents. And it lists the witnesses you intend to call to testify.
If you feel that a witness may fail to show up for the court, you can subpoena them. If a witness has no subpoena and fails to appear, the judge will continue without that witness. The judge will refuse to let you return with the missing things or witnesses.
The judge will request that both the plaintiff and defendant tell the facts. They must also show all of the evidence and proof. The witnesses will testify. Then the judge will weigh the testimony, facts of the case and evidence. So in the end, the court decides who won the case.
Both Sides Tell Their Story.
If the witnesses all speak, the plaintiff and defendant have told their sides of the case. But the judge may ask questions to clarify issues. However, this won’t always happen.
In fact, the judge may see no reason to ask any questions. The small claims trial is informal. And the judge will attempt to get all of the facts from both parties. So he can make a fair and accurate decision in the case.
Conducting yourself right is important. Some other suggestions include:
- Be on time, for court. If the plaintiff is tardy, the court may dismiss the case. If the defendant appears late, the judge might enter a judgment against them.
- In presenting your case, it is crucial to stick to the issues of the dispute.
- Be courteous; don’t interrupt the judge, the defendant or witnesses. At trial, don’t engage in any name calling. And refuse to raise your voice.
- If you fail to understand, ask the judge for help.
- If the defendant offers to settle, or the judge suggests it, consider it carefully. Don’t just turn the offer down. It may be in your best interest to accept the settlement. And this may be true if the judge recommends it.
- At the conclusion of the trial, the judge will generally announce their decision. In some cases, the judge may want additional time to review the evidence. The court may wish to research case law before final judgment. If this happens, it is called taking the case “under advisement.” The plaintiff and defendant will receive a copy of the final decision in the mail.
- If the defendant is unsatisfied, they will be able to file a written motion for a new hearing. And this must be within ten days after the judgment. Then the court will rule on the motion. So it will try and determine grounds for a new hearing.
Another step to take is to appeal the judgment to the superior court. In this situation, the procedure for appealing a decision can become complicated. And it is recommended to consult an attorney.
Above is accurate information and guidelines on small claims limitations. But you need to ensure the best outcome in your small claims lawsuit.
And some motor vehicle injury lawyers will do all your evidence books for you in exchange for their regular fee. And sometimes they agree to handle any appeal by the losing defendant. If you have questions, contact Michael P. Ehline, Esq. He works at Ehline Law Firm Personal Injury Attorneys, APLC. His direct line is (213) 596-9642.