The Wide World of Small Claims, Part III: What Happens When You Get Sued?

 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!

This article is the third of five installments on how North Carolina Small Claims Court works. If you're just now tuning in, Parts I and II are here and here, respectively. Do yourself a solid and check 'em out.

Alright, so I think I might get sued. How can I know for sure?

When you get sued, you're known as the "Defendant," while the person doing the suing (like we talked about in Part II last week) is called the "Plaintiff." If you're the Defendant, it means that someone is accusing you of engaging in some sort of misconduct. Going back to our example in Part I a couple weeks back, our Defendant would be Curtis the contractor.

Your first indication that you've been sued will typically come when you're served with the Magistrate Summons and Complaint. Service will - or should - normally be carried out by the Sheriff's Office in the county where you're located, but it can also be effected in a number of other ways, such as certified mail. Remember from last week that the court's jurisdiction - its authority to pull you into the courtroom - does not attach unless and until you're served with both the Summons and the Complaint.

How do I know when and where the trial will be held?

Just over halfway down the first page of the Magistrate Summons, you'll find a section that includes spaces for information like "Date of Trial," "Time of Trial," and "Location of Court." As you can probably surmise, that's where the clerk is going to write in the date, time, and location of the trial when he or she issues (dates) the Summons.

What happens if I can't be there the day of the trial?

This issue comes up quite a bit in Small Claims, because in most cases you're only entitled to five days' notice before the trial is held. In cases of summary ejectment, you're only entitled to two days' notice. Because of the short notice, you should call a lawyer immediately upon being served if you feel like you need representation. Attorneys generally agree that showing up to any trial on an hour's notice is a great way to get sued for malpractice, so we tend to avoid those situations like the plague.

As far as whether you can get a continuance or not, it really depends on why you can't be there. If you have a compelling reason why you can't attend the trial at the prescribed date and time, such as a family funeral or a dialysis session, you should call the clerk's office and explain the circumstances necessitating your need for a continuance. Most of the clerks are reasonable folks, and they'll give you a continuance if one is warranted.

Be warned, though, that the clerk's office has complete discretion in whether to grant a continuance request. If your reason for wanting a continuance is petty or the clerk thinks that you're just trying to delay, then they can and will shoot you down. In extreme cases, you can show up to the trial itself and ask the Magistrate Judge for a continuance, but be prepared to explain why you need one.

Do I need to respond to the Complaint?

In your standard civil context, such as in District or Superior Civil Court, the Defendant is required to file and serve an Answer to the Plaintiff's Complaint. In Small Claims, you can serve an Answer, but you don't have to. Because of the form of pleadings in Small Claims and the short period of time between filing and the trial, it's actually pretty rare for Defendants to bother with the Answer. It's far more common just to show up at the trial and give your side of the story.

If you have a claim against the Plaintiff - what we call a "counterclaim" - you can include your counterclaim in your answer. Be advised, though, that you'll have to pay filing fees to file your counterclaim. Generally speaking, we advise strongly that you hire a lawyer if you plan to bring a counterclaim.

That'll do it for this week. Tune in next week, when we tell you how to prepare for the trial!