Legal Law - FREE Attorney Lawyer Legal Advice:Small Claims Legal Terms

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Small Claims Legal Terms: Step-by-Step

A good sailor knows the name of every part of his sailboat. The small claims process is laden with legal terms that are essential in navigating this rarely explored and generally incomprehensible environment. These terms are the foundation of the small claims process. By understanding these terms in the order they occur you can better grasp the process step-by-step. You shouldn't feel compelled to memorize them, just know that they are the trappings of the environment you are about to enter, so take some time to familiarize yourself with them, because they are the parts of the system you will be navigating in.

THE TERMS

Synonymous with the term defendant. The person to whom a service was provided or goods were sold and who wrongly refuses, fails, or neglects to pay for that service or those goods. Also includes a seller of faulty goods, or one who has injured or wronged you in any way for which money damages would compensate you for your loss.

A right of action is the legal right to sue; a cause of action is what gives rise to a right of action. If the Statement of Claim fails to set forth a proper cause of action, it will be dismissed. "Jones failed to pay for the services I rendered pursuant to the retainer agreement between us" is a cause of action.

The assertion of a right to money or other property; all of the events and facts giving rise to a right enforceable in court.

The amount of time the law allows you to begin legal proceedings to collect the fee or debt that is due you under the contract (written or oral) with the debtor. After this time (typically six years) you lose your right to sue for collection.

When one person sues another person in a small claims court. The maximum amount that can be awarded in New York is $3,000; the amount varies according to the state.

A small claim initiated by an individual, as long as that individual is not acting on behalf of or representing a corporation or partnership. It remains an individual claim even when the claimant initiates a small claim against a corporation of any kind.

A small claim initiated by a corporation or partnership of any kind. A commercial claimant must have its principal office in the state where it desires to initiate suit. The claim remains a commercial claim even if the claimant initiates a claim against another corporation of any kind, or an individual who is not incorporated.

A court that is usually a subdivision of civil court where one can sue for an amount not more than $3,000 (New York), $2,000 (New Jersey), $2,500 (Connecticut). Proceedings are informal, with parties usually representing themselves. A jury is never present. (In New York City the defendant can pay an additional fee of $55 to have the case heard and decided by a jury.) The suit cannot be for the return of property or the performance of services; money damages are the only form of restitution in small claims court.

A Latin term meaning for self. In legal usage when this term is added to one's signature as in "Dr. Ted Rothstein, Pro Se," it means that the person is acting on behalf of himself in a legal capacity, or simply that he has not hired an attorney and is acting as such.

Also referred to in this guide as the Initial Claim form. It is the first form that you file at the clerk's window. It signifies that you are an aggrieved party with a cause of action (a complaint) and you are seeking the legal remedy offered by way of a court hearing to obtain the payment due you.

The form the small claims court clerk gives you when you file the Statement of Claim (initial claim) form. It provides you with the official identification (index, docket) number of your case, the name of the defendant, and the date of your hearing.

The person who starts the small claims action. The plaintiff in a small claims action may bring an attorney with him to court to represent and advise him. The plaintiff may also represent himself (see Pro Se above).

The one who is sued and called upon to make satisfaction for a complaint filed by another-the defendant can also choose to represent himself or have an attorney represent him (see Pro Se above).

The notice that the clerk at the small claims court window serves on (sends to) the person who you claim owes you money when you file the Statement of Claim. The summons requires the defendant to appear in court on a specified day and time to defend the claim referred to in the Notice of Claim and detailed in the Statement of Claim. The defendant's failure to appear can result in the penalty of having a judgment entered against him. It is also the form you receive if the person you are suing makes a counterclaim against you.

As applied to serving the Notice of Claim (see above) on the defendant, detective service occurs when for one reason or another (incorrect or incomplete address) the notice could not be delivered to the defendant and was returned to the court clerk. Defective service may also refer to the service of other documents such as subpoenas.

When the defendant responds to the plaintiff's Statement of Claim by filing his own Statement of Claim, in which he asserts a cause of action to oppose the plaintiff's claim; the counterclaim arises from or is logically related to the plaintiff's claim.

A document that either the plaintiff or the defendant can obtain at minimal or no cost from the small claims court clerk's window. This form is a notice (demand-request) served on another person (or business entity) to compel the person to hand over documents he possesses , appear as a witness at the hearing, or provide information he may possess about a party's assets.

To deliver in person by someone called a process server or have delivered by mail (certified, return receipt requested, or registered) a subpoena or other legal documents to a person or official representative of a business named in that document.

In the courtroom the calling out of the names of the plaintiffs and defendants in each case (by an officer of the court) to determine if they are present at the hearing.

"APPLICATION" (as used in small claims court, Brooklyn, NY) The word that, when called out by either the plaintiff or defendant in response to the calendar call for their case, means that the plaintiff or defendant wants to request a postponement of the hearing to a future date. The more widely used legal terms for postponement are continuance and adjournment.

The words that, when called out by the plaintiff or the defendant in response to the calendar call for their case, request that the case will be heard by a judge (whose decision can be appealed, see Judge) rather than an arbitrator (whose decision is irrevocable).

A public officer appointed to oversee and to administer the law in a court of justice; in some courts is called a magistrate or justice; the chief member of a court who has control of the proceedings and the decisions about questions of law or discretion. Judge, Justice, and Court are commonly used synonymously or interchangeably. The decision of a judge can be reversed by an appeal taken to a higher court. (See Arbitrator below.)

Usually a volunteer lawyer in a small claims court who hears the facts put forth by the plaintiff and/or the defendant, in order to determine if the plaintiff's grievance is such that he deserves to have a judgment (decision) awarded in his favor. The arbitrator's decision is not appealable and may be vacated only in rare situations. These include, for example, corruption, fraud, misconduct, or partiality of a supposedly neutral arbitrator. (See Judge and Vacate.)

A proceeding that takes place in front of an arbitrator or judge (usually an arbitrator in small claims court) wherein evidence is taken for the purpose of determining issues of fact upon which the legal conclusion (decision) will be based.

A term applied to testimony, given by the plaintiff or defendant or any third-party witness, based on what someone else said or wrote, rather than experienced firsthand, and generally inadmissible because the person who said or wrote it is not present to be cross-examined.

A device that permits the plaintiff or defendant, believing that the witness, testimony, or questions being asked are improper or inadmissible, to stop the proceeding and request that the judge rule on that which is in question. It is accomplished by saying the words "I object" out loud. The objection is important in that it will appear on the record for purposes of appeal.

The name given to a trial (hearing) of an issue of fact, when the plaintiff alone presents the case to an arbitrator or judge because the defendant failed to appear.

The decision of the judge or arbitrator after all the facts have been presented. In small claims court: a monetary award to the plaintiff; a statement that the plaintiff's claim is dismissed (judgment in favor of the defendant); or a monetary award to the defendant on the merits of his counterclaim.

Justice administered according to the rules of substantive law, which is that part of law that creates, defines, and regulates the rights and duties of parties, as opposed to procedural law, which pertains to and prescribes the practice, method, or legal machinery by which substantive law is applied. The concept of substantial justice directs judges and arbitrators to set aside procedural hurdles, which might otherwise dictate a harsh result in favor of a right sense of justice.

A judgment entered in favor of the plaintiff when the defendant fails to appear in court for the hearing. This judgment is awarded after an inquest on the merits of the evidence presented by the plaintiff, which may include oral argument, documentation, and witnesses.

The completion of the legal process of enforcing (by a sheriff, marshal, or constable) the collection of the monetary award granted in the judgment.

The form (court order) provided to the sheriff, marshal, or constable by which he is empowered to initiate a garnishment (seizing, attachment) of part of the debtor's salary to satisfy the judgment that the plaintiff has won.

The form (court order) provided to the sheriff, marshal, or constable by which he is empowered to seize and sell a debtor's property or remove from the debtor's bank account that sum of money that satisfies the judgment the plaintiff has won. (It is also called a Writ of Execution, an Execution Against Property, and an Execution with Notice to Garnishee

The chief executive and administrative officer of a county (Brooklyn, Queens, Nassau, Westchester, Bergen, and so on), chosen by popular election. His principal duties are to aid the criminal and civil courts of record, such as executing judgments, serving process, summoning juries, and holding judicial sales. In New York City, chief sheriff is a mayoral appointment and borough sheriff is a civil position obtained by a civil service test.

The name of a law officer in some cities (i.e., the City of New York) having powers and duties corresponding generally to those of a sheriff or constable.

To render void, to set aside, as "to vacate a judgment." A default judgment may be vacated-for example, when the defendant claims he didn't receive the Notice of Claim and Summons or when either party has a reasonable excuse for failure to appear on a scheduled court date. Consequently, the judgment is nullified and a new hearing date will be scheduled.

When you believe that a decision made by the judge in small claims court is incorrect or substantially unjust (see Substantial Justice), you may appeal the case. That is, you may request that a higher court review the record of your hearing for the purpose of obtaining a reversal of the lower court's decision or the granting of a new trial (among other remedies you can seek).

The first document you must file in order to secure your right to appeal. In New York, it must be filed 30 days from the time you receive the Notice of Judgment from the small claims court.

An official copy of the record of the proceedings in hearing or trial. A word-for-word typing of everything that was said "on the record" during the trial-that is, all the spoken words of the judge, plaintiff, defendant, and other witnesses, in written form.

A transcript that has been specially prepared ("perfected" and "settled") to allow the appellate court to review the history of the case. PERFECT As in "to perfect a transcript of the record" is to correct any errors that may have been introduced at the hearing or by the person who transcribed them.

As in "to settle a transcript of the record" is a formal process whereby the plaintiff and the defendant meet before the judge who heard their case to work out any disagreements regarding the accuracy of the transcript.

A formally structured, written argument, concentrating on the facts at issue, and the legal points and authorities, which a lawyer or pro se plaintiff or defendant uses to present a case to either an appellate or trial court. It includes a statement of the questions of law involved, the law that the lawyer should apply, and the result that the brief writer desires.

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Small Claims Legal Terms: Step-by-Step

THE TERMS