What to DO, when you want to SUE. (Part 2)

Once all parties are served with the appropriate papers and everyone is at the courthouse its now time for litigation. Litigation is the process of carrying on a lawsuit.

In most courts, the judge will call the parties up to the stand and ask them if they have reached an agreement. If they have not, the judge will give them the opportunity to go meet privately within the courthouse to discuss the matter further in an attempt to reach an amicable resolution. If the parties can reach an agreed upon settlement, they will go before the judge and put the agreed upon settlement on the record. From here, the parties would be bound to carry out said agreement. If an agreement can’t be reached, the litigants will proceed to trial.

At the start of a Small Claims trial, the claimant (plaintiff) will present their case first. If he/she has any documents, papers, items, etc. in which they want to present as evidence, they should have it with them at that time. Depending on the court, the judge may ask for all evidence at once and mark it accordingly or he/she may allow the litigant to present each piece of evidence as the trial progresses. Evidence is marked as “exhibits” along with a letter, the first being A, B, and so on. Small Claims court does not adhere to the strict rules of evidence so not all evidence is bound by the hearsay rule. Hearsay is defined as an out of court statement made by someone other than the deponent offered to prove the truth of the matter asserted. (There will be an upcoming blog on the topic of Hearsay, so if confused, stay tuned)

The claimant then presents their case by giving testimony. If they have any witnesses, they will call them up to the stand one at a time and subject them to direct examination. Once complete, the defendant will have the opportunity to cross-examine the witness. Cross-examination is limited to what the deponent testified to on direct. The cross examiner can’t go off on a tangent and ask about issues that were not raised on direct examination. If one or both sides have no witnesses, which is often the case, they themselves will testify on direct and the other party will cross-examine them accordingly. If one or both parties decide to use an attorney for trial, the attorney will conduct all examinations and presentation of evidence. The judge may directly ask the litigants questions themselves, but usually, once a person is represented by an attorney, the judge will speak directly to them as their agent.

Once all the parties plead their case, present evidence and call witnesses, the judge will often take a short recess, review the case in chambers and then render a decision. Often times the decision will be for only a partial amount of the money being sought. Other times, the judge may dismiss the case entirely for failure to state a proper cause of action, or simply rule in favor of the defendant.

If the loosing party wishes to appeal the decision, they may do so by filing the appropriate papers with the New York State Appellate division. This is a higher court that reviews the lower city, town or village court’s decision for possible errors. If one were to decide to appeal, they must notify the other party of their intent within 30 days of receiving a copy of the judgment, along with an affidavit stating that they indeed served the other party notice. The process of appeal can be quite tricky and confusing so it is strongly recommended that the person doing so contact the court clerk or consult with their attorney first.

Stay tuned for future blogs that will address collection of judgment, location of assets, and other ways to make a judgment debtor pay.