Small Claims Court Legal Jargon
Become familiar with the most common legal terminology for small claims cases
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Mercifully, there is not a great deal of technical language used in small claims courts. But there are a few terms that may be new to you and that you will have to become familiar with. Don't try to learn all of these terms now. Refer back to these definitions when you need them.
Abstract of Judgment. An official document you get from the small claims court clerk's office that indicates that you have a money judgment in your favor against another person. Filing it with the County Recorder places a lien on real property owned by the judgment debtor.
Appeal. In the small claims context, a request that the superior court rehear the case from scratch and reverse the decision of the small claims court. Some states allow only a defendant to appeal; others allow the parties to appeal based only on law–not facts. Many require you to post a bond when you file an appeal.
Calendar. A list of cases to be heard by a small claims court on a particular day. A case taken "off calendar" is removed from the list. This usually occurs because the defendant has not received a copy of the plaintiff's lawsuit or because the parties jointly request that the case be heard on another day.
Claim of Exemption. A procedure by which a judgment debtor can claim that, under federal or state law, certain money or other property is exempt from being grabbed to satisfy a debt.
Conditional Judgment. When a court issues equitable relief (such as the return of a piece of property), it has power to grant a conditional judgment. A conditional judgment consists of certain actions or requirements that are contingent on other actions (for instance, return the property in ten days or pay $2,000).
Continuance. A court order that a hearing be postponed to a later date.
Counterclaim. When a defendant responds to a plaintiff's lawsuit by countersuing the plaintiff for damages arising from the same act or failure to act that the plaintiff's lawsuit is about, also known as a Claim of Defendant or a Cross-Complaint.
Default Judgment. A court decision in favor of the plaintiff (the person filing suit) when the defendant fails to show up (that is, defaults).
Defendant. The person or party being sued.
Defendant's Claim. A claim by a defendant that the plaintiff owes him or her money. The claim is filed as part of the same small claims action that the plaintiff started.
Dismissed Case. A dismissal usually occurs when a plaintiff drops the case. If the defendant has not filed a counterclaim, the plaintiff simply files a written request for dismissal. If the defendant has filed a counterclaim, both plaintiff and defendant must agree in writing before the court will allow a dismissal. A judge may also dismiss a case if a defendant successfully claims that a case was filed in the wrong court. Also, if a plaintiff does not show up in court on the appointed day, the judge may dismiss the case. Most cases are dismissed without prejudice, which is legal jargon meaning they can be refiled. But if a case is dismissed with prejudice, it means that it can't be refiled unless the plaintiff successfully appeals the dismissal.
Equitable Relief. There are several areas in which a small claims court judge has the power to issue judgment for something other than money damages–that is, to order a party to return unique property, end a fraudulent contract, fix a mistaken contract, or do some other specific act. This type of judgment is called equitable relief (as opposed to monetary relief).
Equity. The value of a particular piece of property that you own. For example, if a car has a fair market value of $10,000 and you owe a bank $8,000 on it, your equity is $2,000.
Eviction. See Unlawful Detainer Proceeding, below.
Exempt Property. Under federal and state law, certain personal and real property is exempt from being taken to pay (satisfy) court judgments if the debtor follows certain procedures.
Formal Court. As used here, this term refers to the regular state courts other than small claims court. The states call their trial courts by all sorts of names (municipal, superior, district, circuit, supreme, civil, and so on.). In California, for example, claims too large to qualify for small claims court are heard in superior court. All of these courts require considerable attention to often confusing legal language and procedures, and you will want to do some homework if you decide to bring a case there. If your claim really is too big for small claims court, see Represent Yourself in Court: How to Prepare & Try a Winning Case, by Paul Bergman and Sara Berman-Barrett (Nolo). With or without a lawyer, you'll find guidance on certain important pretrial procedures in Nolo's Deposition Handbook, by Paul Bergman and Albert Moore (Nolo).
Garnish. To attach (legally take) money–usually wages, or commissions, or a bank account–for payment of a debt.
Hearing. The court trial.
Homestead. Homestead laws allow homeowners to protect a certain amount of the equity in their homes from attachment and sale to satisfy most debts. Homestead laws can work in one of two ways. In some states, the homeowner must file a paper called a Declaration of Homestead. In other states, simply owning a home (and having the deed recorded) is enough to entitle the homeowner to homestead protection.
Judge Pro Tem. A lawyer who pinch-hits for a regular judge on a temporary basis. Because this person isn't an elected or officially appointed judge, he or she can only hear your case with your written consent, which will normally be requested on the day you go to court.
Judgment. The decision given by the court. A judgment must be written down and signed by a judge.
Judgment Creditor. A person to whom money is owed under a court decision.
Judgment Debtor. A person who owes money under a court decision.
Jurisdiction. A court's authority to hear and decide a case. To properly hear a case, a court must have jurisdiction over the type of dispute and over the parties. A small claims court has jurisdiction to hear cases involving money damages up to a certain amount–for example, $10,000 in Alaska, $4,000 in Kansas. (This is often called the "jurisdictional amount" or "jurisdictional limit.") Some small claims courts also have jurisdiction over certain types of non-monetary cases, such as unlawful detainer (eviction) actions, and some may award non-monetary remedies (equitable relief). Generally, small claims courts have jurisdiction over parties who live in the state, were present in the state when the dispute arose, or who purposefully do business in the state.
Jury Trial. All small claims cases and appeals are heard by judges or commissioners–you're generally not entitled to a jury. Some small claims courts allow jury trials, although most do not.
Levy. A legal method to seize property or money for unpaid debts under court order. For example, a sheriff can levy on (take and sell) your automobile if you refuse to pay a judgment.
Lien. A legal right to an interest in the real estate (real property) of another for payment of a debt. To get a lien, you first must get a court judgment and then take proper steps to have the court enter an Abstract of Judgment. To establish the lien, you then take the abstract to the County Recorder's office in a county where the judgment debtor has real estate.
Magistrate. Another word for judge.
Mediation. A process encouraged in many small claims courts by which the parties to a dispute meet with a neutral person (the mediator) who attempts to help them arrive at their own solution to the problem. If mediation succeeds, it's normally not necessary to argue the case in court; if it fails, the dispute can still go to court to be decided on by a judge.
Motion to Vacate Judgment. The motion the defendant must file to reopen a proceeding in which the judge entered a default judgment because the defendant didn't show up.
Order of Examination. A court procedure allowing a judgment creditor to question a judgment debtor about the extent and location of assets.
Party. A participant in a lawsuit. The plaintiff or defendant may be referred to as a party–and both together as the parties–to a small claims suit.
Plaintiff. The person or party who starts a lawsuit.
Prejudice. A term used when a case is dismissed. A case dismissed without prejudice can be refiled at any time as long as the statute of limitations period has not run out. However, a case dismissed with prejudice is dead (can't be refiled) unless the dismissal is first successfully appealed.
Process Server. The person who delivers court papers to a party or witness.
Recorder (Office of the County Recorder). The county office that records and files important legal documents, such as deeds to real property. The County Recorder's office is usually located in the main county courthouse.
Release. A written agreement in which a person agrees to waive a right or responsibility; for example, a release of liability.
Replevin. A type of legal action in which the owner of movable goods is given the right to recover them from someone who shouldn't have them. It is commonly used in relation to buyers and sellers; for example, a seller might bring a replevin action if the seller delivered goods to a buyer who then failed to pay for them. Some states' small claims courts allow replevin actions.
Satisfaction of Judgment. A written statement filed by the judgment creditor when the judgment is paid.
Service: The formal delivery of court papers to a party or witness, which must be done in a manner specified by statute. Also called service of process.
Statute of Limitations. The time period during which you must file your lawsuit. It normally starts on the date the act or failure to act giving rise to the lawsuit occurred, and ends one or more years later, with the number of years depending on the type of suit.
Stay of Enforcement. When a defendant appeals a small claims court judgment to the superior court, enforcement (collection) of the judgment is stayed (stopped) until the time for appeal has expired.
Stipulation. An agreement on any topic relevant to a case, entered into by the parties and then presented to the judge.
Submission. When a judge wants to delay deciding a case until a later time, he or she takes it under submission. Some judges announce their decision as to who won and who lost right in the courtroom. More often, they take the case under submission and mail out a decision later.
Subpoena. A court order requiring a witness to appear in court. It must be delivered to the person subpoenaed to be valid.
Subpoena Duces Tecum. A court order requiring that certain documents be produced in court.
Substituted Service. A method by which court papers may be delivered to a defendant who is difficult to reach by other means.
Transfer. The procedure by which the defendant can have a small claims case transferred to a formal court. In most states this can be done when the defendant has a claim against the plaintiff for an amount greater than the small claims maximum. In a few states, the defendant can transfer a case simply to get out of small claims court. In many states, a defendant who wants a jury trial can also transfer to formal court.
Trial de Novo. The rehearing of a small claims case from scratch after a defendant appeals. In this situation, the previous decision by the small claims judge has no effect, and the appeal takes the form of a new trial (trial de novo). This is allowed only in some states.
Unlawful Detainer Proceeding. Legalese for eviction. Also known as summary dispossession and forcible entry and detainer in some states. Unlawful detainer proceedings may be brought in small claims court in some states but are not allowed in most.
Venue. This basically refers to the proper location (courthouse or county) in which to bring a suit. If a suit is brought in the wrong county or court (one that is too far from where the defendant lives or a key event in the case occurred), it can be transferred to the right court or dismissed. If it is dismissed, the plaintiff must refile in the right court. However, the case can be heard even in the wrong court if both parties appear and agree to it.
Wage Garnishment. After a judgment has been issued (and the defendant's time to appeal has elapsed), the small claims court clerk will issue a Writ of Execution on the judgment creditor's request. This may be turned over to a sheriff, marshal, or constable with orders to collect (garnish) a portion of the judgment debtor's wages directly from an employer.
Writ of Execution. An order by a court to the sheriff, marshal, or constable to collect a specific amount of money due.