The Wide World of Small Claims, Part I: Introduction

Just because your claim is small doesn't mean it's unimportant. Learn how to protect your rights without blowing the bank!

Just because your claim is small doesn't mean it's unimportant. Learn how to protect your rights without blowing the bank!

What the heck is small claims?

Let's pretend that you hired a contractor, who we'll call Curtis, to replace some light fixtures in your home. The deal was that you would pay Curtis $3,000, and in return Curtis would remove the old fixtures, purchase new ones, and install them in your home. Curtis presented you with a contract, you both signed it, and Curtis got started.

Pretty soon, though, problems started to arise. Curtis took the light fixtures out, but he never purchased new ones or came back to install anything. You called Curtis over and over and sent him several letters, and he's never responded to any of your attempts to contact him. You're out $3,000 and you have nothing to show for it but a bunch of gaping holes in your ceiling.

You want to sue Curtis, but every attorney you speak with wants a retainer of more than what you're owed in the first place. Without a guarantee that you'll be able to recoup your attorney's fees, it doesn't make any sense to retain counsel. So what are your options?

Enter Small Claims Court. Small Claims, a division of District Court, is for parties with claims that are, well, small! Any non-criminal case where the amount in controversy is less than $10,000 is appropriately venued in Small Claims Court. You can use Small Claims to seek the payment of monies owed or the return of personal property, or to evict a tenant for breaching a lease agreement. In Small Claims, the procedural and evidentiary rules are somewhat relaxed from the strict standards applied in District and Superior Court, so it's quite common to see pro se litigants there; that is, people representing themselves without help from an attorney.

How is Small Claims different from traditional court?

The judge. In a normal courtroom, you're in front of a real-life judge. In Small Claims, your case will be presided over by a magistrate acting as a judge. Magistrates are judicial officers who issue warrants, accept pleas and payments, and preside over Small Claims court. Even though your magistrate isn't a true-to-life judge, you should still refer to him or her as "Your Honor."

Discovery. Typically, once you file a lawsuit both parties are entitled to conduct "discovery," meaning that you get to ask questions, take depositions, and ask for relevant documentation in order to gather information about your case. In Small Claims, you don't get to conduct discovery. You and your opposing party will just show up with whatever relevant documentation you might have, and go through it during the trial.

The formalities. Normal trials are subject to very specific and very strict requirements with regard to evidence and procedure. Before offering evidence, for instance, you have to set the proper "foundation" showing that your evidence is admissible. In Small Claims court, normally you don't have to do that. The strict standards are somewhat relaxed, and for the most part, you can testify and offer evidence freely.

Who are the parties in Small Claims?

Just like in regular court, there are two parties in Small Claims; Plaintiff and Defendant. The Plaintiff is the person or party who alleges to have been harmed. For instance, if you're owed money, or if someone has property that belongs to you, or if you're a landlord with a defaulting tenant, you'll be the Plaintiff.

The Defendant, on the other hand, is the person or party against whom wrongful behavior is alleged. Using the above example, Curtis would be the defendant. Similarly, if your landlord is trying to evict you, you'll be the defendant in the Small Claims summary ejectment action.

It's common that parties will make competing claims against one another in the same case. When the defendant makes a claim against the plaintiff, that claim is called a "counterclaim." After hearing both sides, the presiding magistrate judge will rule in favor of either the plaintiff's claim or the defendant's counterclaim.

What does it cost to file a Small Claims complaint?

In most cases, you'll need to consider two separate expenses when filing a Small Claims action. First, you'll need to pay a filing fee of $96.00. Second, you'll need to pay service fees of $30.00 per defendant, in order for the sheriff to serve the complaint and summons on each party that you're suing. While it's permissible for you to serve defendants in other ways, like certified mail, sheriff service is the most reliable and straightforward way to serve a defendant. If you're representing yourself, we strongly, strongly recommend that you pony up the few extra bucks for sheriff service.

If you aren't able to afford the costs of the filing and services fees, North Carolina law allows you to apply to have those fees waived. You'll need a copy of the Petition to Proceed as an Indigent form to get started. Fill in the county and check the box next to "District Court," since Small Claims is part of the District Court. Complete the names of the Plaintiff and Defendant, then check one of the four boxes in the middle of the page. Once completed, sign the Petition and have it notarized. With that done, take the Petition to the clerk's office.

The Clerk can automatically permit you to file, without paying any fees, if you qualify to do so. Otherwise, the clerk may require you to complete a Civil Affidavit of Indigency, which includes more detail than the original Petition. Remember that the clerk has complete discretion in deciding whether or not you can afford to pay the fees.

Good deal!

Next week, we'll return to discuss exactly how to begin your Small Claims lawsuit. Until then, let us know if you have question!