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Personal Experience # 1
 I trust
that the following will be helpful and appreciated by the readers of The Beat.
I used the Small Claims Court because my claim was less than $5,000.00. Each State has its own rules and each County
has its own Court, so you have to go to the County Courthouse where the resort is located. Most have web sites
and you can bone up before going downtown. It is going to cost $100-$150 to file a Small Claim and $20-$30 to have
it served by the Sheriff's Office.
Here are some useful tips:
- You are going to have to put the details of your claim on the Small Claims form. To insure
that all pertinent information is included in a well-written format, type out your claim, in advance of attending
to the Courthouse. Show the name of the Plaintiff and the Defendant at the top of a document entitled "Details
of Claim." When you prepare your actual Claim form, simply indicated "See attached" in the area
allotted for "Details of Claim" on the official form.
- You will pay all fees at the time of filing the Claim and the resort will be served by
the Sheriff.
- The first meeting will be held before a mediator who will try to extract a settlement.
The Small Claims Court process is not a cake walk and will involve much stress and a considerable investment of
your time. If a 50/50 settlement is proposed, you should weight the value of taking half the easy way or going
for all of it the hard way (or losing all of it the hard way).
- If the matter isn't settled by mediation, a court date will be set and you will attend
before a Judge for a preliminary hearing. At this hearing, the Judge will ask each party how much court time will
be required to present evidence and will ask both parties whether the trial will be by Judge or by jury. Those
of little faith who think the Judge is in the developer's pocket should request a Jury trial. The Judge will set
a date for trial.
- Attend to the Court on the Trial date because you lose by default if you fail to attend
this or any prior appointment with the Small Claims Court Take all of your evidence to Court and have copies for
both the Judge and the Defendant.
- Set out your argument in point form so that you can deliver your presentation like the
professional that you are, indicating in your notes when you are referring to documented evidence. Distribute that
evidence to the Judge and to the Defendant as you present each point.
- The Defendant will present the other side of the story after you have concluded, but
the Plaintiff gets an opportunity to rebut the Defendant's evidence and then it is over. While the Defendant is
speaking, have a blank piece of paper and pen ready and write like the devil every time the Defendant makes an
invalid or arguable point. You will rebut these points in your final presentation.
- Keep your notes, evidence and supplies well organized. Document each piece of evidence
as Exhibit "A", "B", etc. and prepare a master list of your Exhibits and make a copy of the
master list for both the Defendant and the Court. Take several pens, a large pad for taking notes and a few paper
clips, so you can clip together multiple pages of documents provided to you by the Defendant.
- Stay calm! Remember, this is Small Claims Court and the Judge doesn't expect you to perform
like Johnny Cochrane. Relax, speak slowly and concisely and if you are losing it, excuse yourself to go to the
rest room and compose yourself.
If the Defendant has an Attorney, you are going to be intimidated, manipulated, frightened and frustrated by
the tactics used by the attorney to rattle you and get you to give up. The Court knows this, but the law is the
law and you could end up having a fool for a lawyer if you don't hire one to represent you. Small Claims Court
is "real" Court, not Judge Judy, and you need to know some very important things if you are to successfully
represent yourself against an attorney. Failing the full appointment of an attorney, you may want to hire an attorney
in a part-time coaching capacity.
You will receive a mountain of documentation from the Defendant's attorney and you will wonder, is it really worth
it to the resort to incur the legal fees that are involved in preparing such a mountain of paper. Remember that
it is not the outcome of your case, but the precedent you might set, that they fear.
When you receive the Defendant's documents, they will include "Statements" and "Motions". You
must respond to most, if not all, of these documents and prepare similar documents of your own.
- Head up your documents in exactly the same format as the Defendant did, and use all common
wording, wherever appropriate. Open the document with the same wording used by the Defendant, remembering to interchange
the references to Plaintiff and Defendant.
- Review each document, slowly, one at a time. For instance, the Defendant will submit
a document entitled "Defendant's Nature of Dispute". You call your document "Answer to Defendant's
Nature of Dispute". Begin your Answer with the same wording. The Defendant will list a number of points. Repeat
each point word for word in your Answer and then in the next paragraph, address each point. State either "Admitted"
if you accept that statement or "Denied" if you don't and explain why you don't accept the point. Proceed
throughout the document, point for point, until you have addressed each and every point. End your document with
the same wording that the Defendant used, remembering to interchange references to Plaintiff and Defendant.
- Once you have completed your Answer to Defendant's documents, you have to prepare your
own "Plaintiff's Nature of Dispute", along with all other Plantiff's documents following the same format
used in the respective document prepared by the Defendant.
- If the Defendant presents any Motions, i.e. documents entitled "Motion for…….",
you must respond with a document entitled "Motion to Strike Defendant's Motion for…….." Copy the format
used in the Defendant's Motion in your Motion to Strike, remembering to interchange references to Defendant and
Plaintiff.
- This is a pile of work and if you aren't into word processing, you are dead meat. You
better find someone quickly to do your word processing because now that you started this case, you must finish
it or risk having your case dismissed as a frivolous lawsuit and finding yourself responsible to pay the Defendant's
legal fees for the mountain of documents that they prepared.
- The documents you want to watch for, in particular, are "Defendant's Motion to Apply
the Rules of Civil Procedure" and "Defendant's Motion for Summary Judgement". You MUST prepare "Plaintiff's
Motion to Strike" both of these motions. The former is the Defendant's request to the Court to supersede the
rules of the Small Claims Court and treat the matter as if it were NOT a Small Claims Court issue. The latter is
the Defendant's request to the Court to dismiss your claim without a Hearing and award legal fees to the Defendant.
So, if you are going to toss in the towel, file these Motions to Strike before you do.
- When you file your Answers and Motions, you must do so by personal service or by Fed
Ex and prepare a Certificate of Service, the format for which can be copied from the Defendant's documents.
- When serving documents personally, ensure that the recipient or an employee of the recipient
signs a receipt.
- Tell The Beat all about it when it is over, but don't say a word until the check is in
the bank and be careful to report only the facts. The case and its outcome are a matter of public record. If you
embellish, distort, exaggerate or vent on irrelevant or non-legal issues, you could find yourself being sued by
the Defendant for defamation.
Personal Experience # 2
A
number of years ago, I successfully sued Fairfield Williamsburg for commissions owed using Small Claims Court and
self-representation. (Small Claims Court handled disputes of amounts up to $10,000 in Williamsburg, Virginia.)
At the time the filing fee was $16 and the clerk at the courthouse was most helpful in offering advice for completing
and filing the necessary forms. Since Fairfield was a corporation, it was a simple telephone call to the State
Corporation Commission to obtain the name and address of the corporate agent listed for Fairfield. (He's the guy
they serve.)
On the morning of the hearing, [the person], who was then VP Fairfield Williamsburg, telephoned me with an offer
"in good faith to save me any embarrassment in court" to settle for $200. I don't remember my exact comment,
but I politely declined. I do recall saying to myself however, that if he even made an offer to settle, he believed
that there was a chance that they would lose in court. That pumped me up!
At the hearing, Fairfield was represented by a high-buck local attorney, with [2 Fairfield representatives] in
attendance. When [one of the representatives] was on the stand, I was polite but insistent and careful to ask specific
questions to obtain answers that were relevant to my case. ( I already knew the answers to the questions - it was
a matter of having [him] state them to the judge.)
The judge found that the commissions were indeed owed to me and awarded the entire amount to me, including the
$16 filing fee as costs. He also entered a judgment against Fairfield for the amount of the commissions. The amount
in dispute as "bonus" was not awarded to me - I had not thought to clarify that the amount referred to
as "bonus" was really amounts of commission tied into a volume of sales. In retrospect, had I thought
of presenting the "bonus" listing as a schedule of commissions, arguing that the amount should be considered
commissions and not a "bonus", it is highly probable that the judge would have awarded the full bonus
amount to me as well.
If there is any advice that I can offer it is that it is extremely important to have all your paperwork in order
(get your hands on every company document that will help your case) and to be highly organized. Prepare your case,
rehearse your case, and while in court, try to remain calm and stick to the relevant facts. Build your case step
by step in logical progression. Stick to the facts and don't let the other guy's attorney rattle you, which he'll
most probably attempt to do. His job is to intimidate you, to attack your credibility and to try to get you to
respond emotionally. Don't let him sucker you. Hey, act like a salesman! Smile.
As long as you have sufficient documentation and your facts are correct, there's no reason why you should not be
able to win in Small Claims Court - you shouldn't even need an attorney - if you can sell timeshare successfully,
you should be able to sell your case to the judge. He will not expect you to act like an attorney but he will expect
you to be truthful and to stick to the facts. No heat in the courtroom, please. And as an aside, it's doubtful
that you'll ever be able to work for that same company again. Should you ever decide to, that is.
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