Bryant H. Byrnes, Esq.

By: Bryant Byrnes, Esq.

In last month’s article I discussed the small claims court process and procedures – preparing the complaint, filing it, service, etc. (If you missed the article, please visit SFBA NARI’s website and click on the link “In the News/Newsletter” under “For the Trade.”) What follows is a discussion of the small claims hearing itself.

The Small Claims Trial In General. It takes place in a regular superior courtroom, but the differences from a regular trial are several. First, no attorneys are allowed to represent parties (unless one is a party herself or himself). Second – and more important to you – most of the judges are not regular superior court judges. They are older, experienced volunteer attorneys who get a thrill from wearing a judge’s gown and pounding the gavel. (“Order! I will not tolerate any more untowards behavior!”) They may be probate specialists, criminal defense attorneys, or in personal injury. As a result, your particular judge may not know a lot about breach of contract and/or construction. That is why I think the “small claims brief” discussed below is an important tool for your success.
The Hearing Itself. What if the other party does not show up? Easy; you win as a matter of course if your paperwork is in order.
It is when the defendant does show up that you have some work to do. And this is when a brief is recommended.

The Brief. A brief is a written statement setting out the legal position of a party. Here it should be short, about two or three pages.

Your small claims brief should have a brief recital of the facts, a brief statement of relevant law, and the attachments of documents to your case. Theses attachments typically are the contract, change orders, and invoices – and any collection letters. Keep in mind that as the plaintiff you have the “burden of proof.” This means you have to prove to the judge that it is more likely than not that your version of the facts – that you did the work, the work was fine, but you were not paid – is correct.

Because the judge frequently may not know much about construction or contract law, the brief gives the basic law and facts that he or she needs to render a decision. Always bring three copies of the brief and its attachments – one for the judge, one for the defendant, and one for yourself.

While a good idea regardless, it is when the other party shows up that the brief is crucial. It can be used as your script to explain to the judge what has happened. It is also a way to get your key documents (which are attached) to the judge.

Since you are the plaintiff, you get to go first. (“OK, Mr. Flutterblast, tell me what happened.”). What usually works is to hand the judge a copy of the brief and say you would like to briefly recite the facts. The judge may or may not want you to; sometimes he or she simply reads it and says “OK” – and then lets the defendant talk.
Another reason the brief is important is judges rarely rule immediately from the bench when it is contested. When he or she sits down later to review the papers and decide the case, the brief with its facts and documents makes it much simpler to render an award for you.

The Winner? Now what. Once you win, what do you do? You should take your judgment and turn it into an Abstract of Judgment. An Abstract of Judgment is a fill-in-the-blank court form which summarizes the court judgment and when filed with the appropriate County Recorder’s office becomes a lien on the debtor’s property. And should the defendant debtor refinance or sell the property, the judgment (with rare exception) must be paid.

In the meanwhile, the interest on the judgment is 10 percent per year. Judgments are good for 10 years and may be renewed prior to that for another 10 years.

Previous Articles. You’ll find previous articles on this blog under Legal Advice Column.

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Bryant H. Byrnes, Esq. practices construction law in the San Francisco Bay Area and is counsel to the NARI Board of Directors. Questions? Please feel free to contact him by email at bhbatty@pacbell.net.