How To Represent Yourself Without A Lawyer – Part II

In this blog, I’ll be discussing what you should do if you’re the plaintiff.   Hopefully, you have read Part I, gone to the PA Courts website at www.aopc.org, found the location of your local district court, paid your fee, and have received a notice of your hearing date.  If you haven’t, go back and read Part I before proceeding.

 

The plaintiff is the person with something to prove.  You have filed a complaint saying that someone or some company owes you money, so you better be ready to prove it.  If all you have is your word, you might as well stay home.  One person’s story, without anything to back it up, isn’t very convincing.

 

Documents win cases.  If there are relevant documents, bring them and have extra copies for the judge and the defendant.  Highlight the sections of the documents you feel support your case.  For example, if a contractor promised to do something in a contract and failed to do it, highlight the language in the contract. Don’t make the judge go look for it. 

 

Photographs of any damages to personal property or real property are essential.  If the tenant left your rental home in shambles, show the judge!  As they say, a picture is worth a thousand words. 

 

Organization is key.  Remember, a district court judge may have dozens of other cases to decide, so you want to get to the point and present your evidence in an orderly fashion the judge is likely to remember.  Generally, try to present your case in chronological order perhaps with even a chart of key dates or events for the judge and a calculation showing how you added up the total damages.  Tell a story.  Make it interesting.

 

Let’s try a simple contract case.  You hire ABC contractors to install a new kitchen floor for $3000.  After installation, you notice the floor is buckling in several places.  ABC refuses to make repairs.  You either pay or obtain an estimate of $4000 to remove the existing flooring and reinstall new flooring.  (Remember, $8,000 is the limit in PA for district court.  Anything higher, and you will want to consult an attorney.)  To prove your case, you should present at a minimum (1) a copy of your contract with ABC contractors, (2) photographs of the damaged flooring, and (3) a copy of the estimate for repairs hopefully identifying the defects in ABC contractor’s work.  It can be that simple.   Documents. Pictures.  Organization.  You hired someone to do a project (document).  They messed up (pictures).  Now it will cost you more to fix (more documents).  A story presented in a logical sequence (organization). 

 

Other evidence that can be helpful are letters or other writings by the parties, testimony of witnesses who personally heard or saw something relevant to the case, or even the damaged property or other physical evidence.  However, in most district court cases, documents and pictures are sufficient.

 

Because there is no discovery in small claims, you won’t know what the defendant may offer as evidence until you get to court, but you can try to anticipate.  In our contract case, for example, ABC contractors may have its own pictures of the finished project, so make sure yours are dated.  Or ABC may claim the buckling occurred after the dishwasher overflowed and is not a result of faulty installation or flooring.  Anticipate their arguments and prepare to refute them.

 

Every case is different.  Not all cases are straightforward like the contract case I used as an example.  It is well worth the consultation fee to sit down and talk it over with an attorney before you try it on your own.  And, finally, be open to a settlement.  The judge will usually require the parties to talk before he hears the case and will warn you that one of the parties is not going to be happy with his or her decision.  Going home with some money in your pocket is better than getting nothing for your efforts.

How To Represent Yourself Without A Lawyer – Part I

Got your attention, didn’t I?  This blog is the first in a five-part series I will write on representing yourself in small claims court.  In the legal world, a small claim is akin to removing a splinter.  It can be done successfully by a non-lawyer with care and proper preparation.  However, I must preface these blogs with the warning that they are limited strictly to small civil claims.  I do not recommend that anyone proceed at a higher level without professional assistance anymore than I recommend you try to remove a bunion with an exacto knife and a pair of tweezers.  Even with a small claim, spending a couple hundred bucks for a paid consultation with a lawyer before the hearing is money well spent.

 

Also, representing oneself in court is an option only for human beings.  By law, corporations and other business entities cannot be represented by a non-lawyer.  Anyone attempting to do so risks sanctions for practicing law without a license and any proceedings that take place may be null and void.

 

So what is a small claim?  The amount depends on the jurisdiction.  In Pennsylvania, claims for $8000 or less, exclusive of attorney fees and costs, may be brought in the local district courts, also called the minor judiciary.  To file the claim properly, you need to know where to file it.  Typically, the aggrieved party (plaintiff) will file the complaint in the district where the injury or damage occurred or where the person or company being sued (defendant) lives or has a place of business.  To locate your local district court, go to www.aopc.org and click on the “Minor Courts” tab, or follow the link from my website.

 

The complaint itself is nothing more than a one-page form you can obtain from the court or download online.  Fill in your name and address, the defendant’s name and address, the amount of money you are seeking, and a brief description of your claim.  It can literally be as simple as “I loaned him money and he did not pay me back.”  That’s it!  No need to cite to statutes or case law.

 

Filing fees also vary depending on the jurisdiction and the amount of the claim, but generally do not exceed $125.00.  Once you turn in the complaint form and pay your fee, the court will send notice of your complaint to the defendant.  If the defendant fails to respond, usually within twenty (20) days, the court will enter a default judgment in the amount you requested.  If the defendant responds, the court will schedule a hearing, usually within a couple months of the filing date on the complaint. 

 

Because of their simplicity, speed, and nominal cost, the small claims courts are an effective way of disposing of minor claims without involving lawyers and incurring the time and expense of more intensive litigation.  However, as with most things in life, there is a catch.  Either party has the right to appeal an unfavorable decision from a small claims court to the county court (In PA, the Court of Common Pleas).  Unscrupulous litigants may appeal simply to drive up the cost, aggravate their adversary, and delay the final resolution.  If the court’s award is not appealed within thirty (30) days after the judgment is entered, it becomes final and enforceable, but even a final judgment does not necessarily equate to money in hand from the defendant.  We’ll leave collection of judgments for another blog.

 

The remainder of this series will cover:

  • How to prepare your case if you’re the plaintiff
  • How to prepare your case if you’re the defendant
  • Landlord/Tenant disputes
  • Small claims in New Jersey Special Civil Part

What Is My Injury Worth?

Have you ever wondered how a jury decides to award a certain figure to an injured plaintiff?  Is there a book somewhere that assigns a value to a herniated disc or a fracture?  In short, no.  A valuation of a person’s injuries is a combination of many factors including age, lifestyle, the limitations caused by the accident, and even where the lawsuit is filed.  Today, juries are far less inclined to award significant damages than they were in the 1990’s.  Defense verdicts and minimal damage awards have become more common even in cases where the defendant’s liability is conceded.  These factors have driven down settlement values because defense counsel are more confident about going to trial. 

While estimating an injured person’s damages is not an exact science, there are certain general parameters plaintiff’s attorneys keep in mind.  Someone who has received only primary care or chiropractic treatment, even for a lengthy period of time, and who has not been terribly inconvenienced or lost significant time from work can expect to receive under $15,000.00.  If an individual in this situation has limited tort, most attorneys will not even take the case. (Read my earlier post for an explanation of limited tort).

Diagnostic evidence of a herniated disc, a fracture, nerve damage or other internal injury, and scarring or disfigurement will increase the value of the case.  However, the impact on work and other activities is still a major consideration.  Lesser impact, lesser damages.  Greater impact, greater damages.

To obtain six figures, an injured plaintiff most likely will have to have undergone some type of surgery, have been disabled from work and activities for a significant period of time,  and have permanent injuries that continue to have a significant impact on the person’s lifestyle.

To receive an award in excess of a million dollars, the case will most likely  involve a death or a crippling injury likely to require substantial costs for continuing medical care into the future. 

Evaluation and estimation of damages requires careful consideration of the client’s medical records, wages, earning capacity, period of disability, likelihood of recovery, continuing medical care if any, and, yes, even where the case will go to trial. (Philadelphia, good.  The outlying counties, not so good).  Beware of anyone who throws figures at you, especially high ones, before a full evaluation of your case.  You are likely to be disappointed.

For ERISA Disability Claims, Forewarned is Forearmed

Employees who are thinking of applying for disability benefits must seek guidance while still employed  or run the risk of finding themselves without any income at all.  Too often, employees leave their jobs with the expectation that the disability checks will start coming as soon as they turn in their application.  By the time they come to me, my options to preserve their income have been cut in half. 

As an example, an individual with a degenerative autoimmune disorder was confronted by his boss with complaints about his job performance.  In response, he agreed to “retire” and seek long term disability benefits.  Had he come to see me first, I would have advised him not to leave employment until we had reviewed whether the employer could provide accomodations for his disability as required by the Americans With Disabilities Act.  He may have continued working effectively for awhile and improved his performance with a few changes in his work enviroment.  Second, an early retirement and disability cannot co-exist.  Retirement is a voluntary choice to leave employment permanently, not compelled by a physical condition, and without the expectation to return.  An insurance company will be quick to pick up on any evidence that an employee has elected to retire.

In the case of the client with the autoimmune disorder, the insurance company, while acknowledging his condition, claimed it had not progressed to the point where he was medically disabled from working.  In short, he quit prematurely.  Because he quit while not “disabled” as defined in the policy, he will not be able to apply for disability benefits at anytime in the future when the condition inevitably worsens.  Having “retired” voluntarily, we cannot continue his employment with accomodations until the medical issue is beyond dispute or fault the employer for failing to accomodate him.  Worse still, he cannot claim unemployment benefits because of his voluntary departure.  He has fallen into the crevice between employment and approved disability with his only hope to challenge the disability denial and obtain a reversal, no small undertaking with the law stacked in favor of the insurance companies.

I cannot urge employees strongly enough to seek legal guidance before applying for disability benefits.  Employers are too often glad to assist a disabled employee’s departure and do not advise them that the insurance company, not the employer, determines eligibility for benefits which are not guaranteed.  Seek counsel before you find yourself between a rock and a hard place, unemployed without unemployment or disability benefits and facing the daunting task of getting an insurance company to reverse its decision.

Limited Tort Limits Plaintiffs in Automobile Accident Cases

I sat as an arbitrator today in the Bucks County Court of Common Pleas and heard two personal injury cases in which each plaintiff alleged his/her injuries were serious enough to overcome the limited tort threshold.  For anyone who has purchased motor vehicle liability insurance and still does not know what the limited tort threshold is, it is the selection you make when you elect to give up the right to sue for “minor” injuries in exchange for a lower insurance premium.

Now, mind you, I represent plaintiffs in personal injury cases and do this for a living, so I was not unsympathetic to the plaintiffs and their attorneys.  I believed they suffered injuries in the accidents.  However, I simply found their proof lacking when it came to establishing a “serious impairment of a body function.”  Perhaps the plaintiffs or their attorneys simply lacked an understanding of what this means.  The law requires that a plaintiff not only establish an injury, but also demonstrate how it has had a significant impact on his/her usual and customary activities.  It is not enough to claim one experiences pain when lifting, bending, reaching, etc. or that you can no longer pick up your child.  It also doesn’t help when, as in one of the cases today, the plaintiff fills out her doctor’s questionnaires reporting minimal impact on her activities and then tries to convince the arbitrators otherwise.

If you are concerned about your ability to be compensated in the event you are injured in an automobile accident, the simplest solution is to select full tort.  If you have selected limited tort, one thing you can do to help your attorney is to keep a diary after the accident writing down all the specific occasions and examples of how your injuries impact your life.  Dates, times and places of repeated occasions when you could not participate in a family activity, had to give up a second job or income producing hobby, or otherwise significantly altered your normal work/play activity will help your attorney convey to the factfinder how significant an impact you have suffered.  Having to give up golf when you only play four times a year or having to play in pain, even as a regular duffer, won’t win the day.