SMALL CLAIMS COURT STRATEGIES AND SETTLEMENT

A Small Claims Court case is simply a lawsuit by one party against another party where the sum sought after is up to $5000.00. Florida law has created a system within the County Court system where smaller cases such as these are handled in a unique and often expeditious manner. There are many ways of proceeding if one finds himself or herself as a defendant in a Small Claims Court case. You may be able to file a Motion to Dismiss if there are defects in the Plaintiff’s case, an Answer may be appropriate, possibly a Counterclaim will be necessary, or the case can be amicably settled. This article will only deal with settling the most common Small Claims Court case whose subject matter is a Security Deposit Dispute, and assumes the Small Claims Court case is NOT filed by an attorney, but rather is pro-se, meaning that the Plaintiff filed the case on his or her own without an attorney signing the paperwork.

The Security Deposit Dispute—The Most Common Small Claims Court Subject Matter

The vast majority of Small Claims Court cases involve a dispute over a security deposit. The Plaintiff, a former resident, will claim that you failed to return the security deposit, failed to send out notice in the required time period or unfairly charged the security deposit for things that were not the Plaintiff’s responsibility. Most of the time the Plaintiff is suing for no more than the security deposit amount plus the costs of filing the lawsuit. While you may firmly believe that the amount you charged the Plaintiff is absolutely correct, this type of case is one of the best kinds to settle rather than fight.

Why Should We Settle?

The Small Claims Court case regarding a security deposit dispute is much harder for the manager to fight than one may think. The same judge that seems very tough on residents in eviction court often seems to bend over backwards to believe the Plaintiff’s story of the evil, greedy manager who charged the Plaintiff for damages he did not do to the unit that the Plaintiff left cleaner than it was when the Plaintiff moved in. While the ex-resident Plaintiff is bringing the case against your company and should have the burden of proof, the judge will demand that you prove that the unit was not damaged when the resident moved in, the resident did the damage while living there, it was over and above ordinary wear and tear, and you can prove the costs of the repairs or replacements. You may need a detailed move-in and move-out inspection form, photos, videotapes, maintenance persons, vendors and just about anybody you can possibly think of that had contact with the unit in court with you to prove that the amount you charged the Plaintiff was correct. You may have a stack of bills for carpet cleaning, pest control and painting, but the judge will not look at these if you try to use them to prove the Plaintiff damaged the unit, as these bills will be considered hearsay. You will need to bring the painter, pest control person and carpet cleaner into court to testify, and often they do not want to come to court or, when they do come to court, make poor witnesses. In almost every single case we examine, the manager has severe weaknesses in the case.

The Mechanics of the Small Claims Court Case

The Plaintiff files the Small Claims Court case in County Court and has the case served upon you, the defendant, by Registered mail, private process server approved by the court, or most commonly, by a Sheriff’s deputy. When the case is filed, a date is specified on the paperwork for a Pretrial or Mediation date. If the case is not settled before the Pretrial date, you must attend this Pretrial, or you will have a judgment automatically entered against you or your company. At the Pretrial, a mediator is appointed to the case, and there is an opportunity to sit down in a private room with all the parties present to discuss the possibility of settling the case. If the case is not settled, the parties go back to the courtroom where they wait for a trial date from the judge. The parties must then attend the actual trial, where the case will be fully tried with all witnesses present. At the end of the trial, the judge will make his or her ruling and may award costs at that time.

How Long Does the Process Take?

The Pretrial process usually takes from 1 hour to 3 hours depending on how many cases are assigned to the court that day. The time is usually spent waiting in the courtroom to be called by the clerk. Once called and a mediator is assigned, the actual Mediation session usually takes between 30 minutes and one hour. If the case is not settled in Mediation, the parties will be sent back into the courtroom, where the wait can be from 5 minutes to one hour to get a date from the court for the trial. The trial is usually scheduled to be held within 60 days from the Pretrial date. On the trial day, the parties can potentially wait up to 2 hours for the trial to begin, and a typical small claims trial takes anywhere from 30 minutes to 2 hours on average. Unlike what you may observe on “The People’s Court” or “Judge Judy”, all the rules of civil procedure apply in the Small Claims Court trial, and it is actually taken very seriously by the judge. You need to have all your witnesses and evidence in court. If you are unprepared or disorganized, expect to be intimidated and berated by the judge. Frequently the judge is already annoyed that the case was not settled, and most judges really do not seem to enjoy small claims court trials.

Settling Prior to the Pretrial, the Cost-Benefit Analysis and “Principle”

Settling the Small Claims Court case prior to Pretrial/Mediation is the preferred way to go. At this point you will have little to no time into the case and will have avoided countless hours of aggravation. You need to make a simple cost benefit analysis of the situation and avoid wanting to go to court for “the principle of the matter”. Fighting over “principle” is just not wise. First, your expenses will be increased and secondly, you have no idea whatsoever if you will win in court, as Small Claims Court is so full of surprises. If you and the Plaintiff can come up with an agreeable amount, the agreement is put into writing, the money is exchanged, and the Plaintiff files a Voluntary Dismissal with the court. Does it make sense to take 3 staff members out of the office for 5 hours? Are you sure you are going to win in court? Will you need to get your attorney heavily involved? Will you need to subpoena parties? Will your vendors that you subpoenaed be aggravated with you? Will they show up in court? You need to take a deep breath and ask all these questions before you chart out your course of action. Assuming you are agreeing to give the Plaintiff some money to settle the case, it is imperative that you do not just send the Plaintiff the money. You must do this in conjunction with a proper Voluntary Dismissal and release. You don’t want to settle with the Plaintiff and then have his or her co-resident sue you over the same dispute. Smart settlement is a smart thing to do. Principle does not pay.

Settling the Small Claims Court case at the Pretrial Mediation

Surprisingly, most Small Claims Court cases are settled at the Pretrial Mediation. The court has fully trained volunteer mediators from all walks of life whose mission it is to have you settle the case and walk out of the courthouse relatively satisfied. In the mediation, each party has a chance to present their side of the story in front of the impartial mediator. The mediator also will conduct a caucus at times, whereby one party leaves the room and the other party can privately speak with the mediator. When you go to mediation, you want to be very prepared, as sometimes; a good mediator will encourage a party to settle if they feel the other party has a very good case. Once the parties come to an agreement, the mediator writes everything up on a settlement form, and the case is over. Assuming it is a security deposit dispute and you are agreeing to return some funds to the resident, this will all be written out, and you must comply with the Settlement agreement or you will have a judgment entered against you. Since we know that most cases are settled at Mediation, try to settle the case BEFORE mediation to avoid wasting time.

Suppose Mediation is Unsuccessful?

If Mediation is unsuccessful, a trial date will be set by the court. It is important to bring your calendar with you to Mediation, as once the trial date is set, the only way it can be changed is with agreement by the parties or the court granting a Motion for Continuance. After a trial date is set, there is plenty of time to decide whether proceeding with the trial is prudent or settlement is the better way to go. A case can be settled at any time prior to the actual trial date. Sometime after the parties have some time to reflect on the mediation, settlement becomes easier. The time before trial can be used to continue to attempt settlement through the use of offers and counteroffers. Always get the Plaintiff’s phone number and current address so the lines of communication can be kept open.

Your Attorney’s Role in a Small Claims Court Case

It is a good idea to always notify your attorney the moment you are served with a Small Claims Court case so your attorney can quickly review the paperwork and give you some advice. Most honest attorneys will tell you the truth about your case, disclose how much it will probably cost to fight the case and advise that you try to settle the case. In most cases, if your attorney advises that you settle the case, they can provide you with advice and with forms to help make this happen. You may want your attorney to attempt to settle the case. This is often an excellent route to take, as long as it will not take your attorney too many hours to accomplish this task. Give your attorney a figure that you will settle on, agree on attorney’s fees, and let your attorney run with it. A pro-se plaintiff will be surprised that you have an attorney involved in the case and will be more likely to want to settle. Here you attorney acts in a quasi-mediator fashion to get the parties to settle. The truth is, most attorneys have no desire to fight small claims court cases regarding dispute security deposits, because in most cases, they know that in the end, their client will not be happy having to pay their attorney’s fees and possibly losing the case in whole or part. Your attorney will advise you if you can go it alone, or if the attorney should file a Notice of Appearance and take over the case.