The big moment has arrived. You're in the courtroom, all parties are present, and your case is called by the clerk. What happens now? First, the judge will ask everyone's name and who they are (plaintiff, defendant, or witness). Second, the judge will ask the plaintiff to briefly state his or her case. After the plaintiff and any witnesses for the plaintiff speak, the defendant will have a turn.
Tips for Both Parties
Before we focus on the plaintiff's and defendant's presentations, here are a few tips both parties should find helpful. These are not rules written on golden tablets, just suggestions.
- Stand when you make your presentation to the judge. Standing gives most people a sense of presence and confidence at a time when they may be a little nervous. It's fine to sit while your opponent is talking. If the judge interrupts your opponent's presentation to ask you a quick question that requires a short answer, there is no need to leap to your feet to answer it.
- Be as brief as you can while still being sure to explain and document your case thoroughly.
- Start with the end of the story, not the beginning. That is, describe your loss and how much you are asking for. Then go back and tell your story chronologically.
- Don't read your statement. Reading in court is almost always a bore. But you may find it helpful to make a few notes on a card to serve as a reminder in case you get nervous or forget something. If you decide to do this, list the headings of the various points you want to make in an outline form. Be sure your list is easy to read at a glance and that the topics are in the correct order.
- During your or your witness's presentation, the judge is likely to interrupt to ask questions. Never put the judge off by saying you'll get to the point later in your presentation. Far better to directly answer any questions. Just be sure that you and your witnesses eventually get a chance to make all of your key points. If you feel rushed, say so. The judge will normally slow things down a little.
Really, don't interrupt. When I presided over small claims cases, I would start each session by announcing, "Please do not interrupt the other side when they are speaking, no matter how outrageous you think any particular statement might be. I promise you'll have a turn to tell me your side of the case. I don't usually use a point system in deciding a case, but if you interrupt the other side while they are speaking and sing out with something like, 'That's a lie!,' I'd be tempted to subtract a point from any score I was keeping. And you never know, you might need that point later on." I'd smile at the audience, and they'd chuckle, but when the first person violated that rule, there'd be a big groan from the audience. –Judge (Ret.) Roderic Duncan
- Try to present any portion of your case that is difficult to explain verbally in another way. This often means bringing your damaged clothing or other exhibits, such as photographs or canceled checks, and presenting them to the judge in an organized way. Short videos can be helpful but call in advance to make sure there is a way to show your videos.
- Don't act like a lawyer when asking your witnesses to testify; let them tell their story and only ask questions at the end if they've left out an important fact.
- There will be a blackboard in court. If drawings will be helpful, as is almost always true in cases involving car accidents, be sure to ask the judge for permission to use it. You will want to draw clearly and legibly the first time, so it's wise to practice in advance or prepare a small version of the drawing ahead of time to copy from.
- If you are the defendant, don't repeat facts already presented by the plaintiff that you don't dispute (for example, that the two of you had a fender bender at a certain corner in a certain city at a certain time during certain weather conditions). Instead, focus on the facts of your principal disagreement (whether the light facing you was green or red, for example) and introduce evidence to prove that point.
- Ask for a continuance if necessary. The best laid plans can occasionally go haywire. Perhaps a key witness doesn't show up, or maybe, despite careful preparation, you overlook some aspect of the case that the judge feels is crucial. If this occurs, you may want to ask the judge to reschedule the case on another day so that you can prepare better. It is perfectly proper to make this sort of request. Whether or not it will be granted is up to the judge. If the judge feels that more evidence isn't likely to change the result, or that you are making the request as a stalling tactic, it will not be granted. If, despite the fact that you prepared conscientiously, there is a good reason for a delay, it will usually be allowed.
- Recognize that a judge who is convinced that one side is morally in the right will bend over backward to find a legal reason to rule in that person's favor. For example, if you lent a friend money in an emergency and he is now trying to wriggle out of his obligation based on a legal technicality (claims the loan was really a gift), make sure the judge understands the trouble your opponent's bad act has caused you (you can't afford to pay college tuition).
- If you've done legal research and believe that a statute or court decision supports your position, call it to the attention of the judge as part of your oral presentation. If possible, it's also a good idea to back this up with a brief written memo. Begin with the name and number of your case. Then list the official citation of the statute, ordinance, or court case you think helps your case and briefly explain why. In court, give one copy of the memo to the clerk to hand to the judge and another to your opponent.
Less can be more when you're testifying. If the judge asks you a question like, "Did you have a written lease with the landlord?" the better answer is either "Yes" or "No," as appropriate, not something like: "Well, Your Honor, before I answer that question I need to tell you the background of the case. I first met the landlord in 1985, and then…" You get the idea.
Practice your presentation early and often. As emphasized throughout this book, it pays to practice making your oral presentation ahead of time. Have a tough-minded friend or family member play the part of judge, ask questions, and try to poke holes in your best points. Run through your presentation several times until you get it right.
From the Plaintiff's Side
If you are the plaintiff, you should clearly tell the judge what the dispute is about before you start describing the details of what happened.
If your case involves a car accident, you might start by saying:"This case involves a car accident at Cedar and Rose Streets in which my car suffered $872 worth of damage when the defendant ran a red light and hit my front fender."
That introduction is much better than:"It all started when I was driving down Rose Street after having a bagel with cream cheese for breakfast."
It's a rare case where the plaintiff's initial presentation should take longer than five minutes. As part of your statement, you should present and explain the relevance of any papers, photos, or other documentary evidence. You should hand these to the clerk, who will pass them on to the judge. You should also be sure to tell the judge if you have any witnesses to present.
Your witness will normally be given a chance to speak after you complete your presentation. The witness should be well prepared to state any key information in an organized way (for example, that he or she inspected the apartment immediately after you did your final cleanup and found it to be clean). Too often, when witnesses are asked to testify, they either leave out important points or are so disorganized that the force of their testimony is lost.
The judge will probably question your witnesses. Don't count on being allowed to ask your witnesses questions or cross-examine the other party or their witnesses. Most judges will want to do any questioning of witnesses that is going to take place. Hostile feelings often bubble forth if the parties are allowed to ask questions of opposing witnesses. If one of your witnesses forgets an important point, wait until the judge is about to excuse the witness and then politely suggest that the judge allow the witness to make a further statement, for example, "Your Honor, Ms. Peterson hasn't said anything about the color of the traffic light. Would it be possible for you to ask her to cover that subject?" If your opponent or one of her witnesses skirts an important issue, say something similar, like, "Your Honor, the defendant hasn't said anything about how many beers he drank that night. I would appreciate it if you would ask him to cover that subject." –Judge (Ret.) Roderic Duncan
From the Defendant's Side
Sooner or later it will finally be the defendant's turn. Defendants often get so angry at something the plaintiff has said that when they get to speak, they attack angrily. This is usually counterproductive. Far better to calmly and clearly present your side of the dispute to the judge. Start with the key point of contention and then fill in the details of what happened from your point of view. If the plaintiff has made significant false or misleading statements, these should definitely be pointed out. But to show the judge how calm and fair-minded you are, wait until after you have made your key points to calmly point out your opponent's misstatements.
EXAMPLE: "Your Honor, it's true that the bumper of my truck hit the defendant's fender and pushed it in slightly. But the key thing I want you to understand is that this happened because the defendant's pickup entered the intersection before it was clear and therefore the accident was his fault. Here is what happened. I was driving south on Cedar and entered the intersection just as the light first turned yellow. I slowed briefly near the center line behind a car that was turning left and then continued across, at which point the defendant's car darted in front of me…"
A Sample Contested Case
Now let's look at how a contested case might be presented from both the plaintiff's and defendant's perspectives.
Clerk: "The next case is John Andrews v. Robertson Realty. Will everyone please come forward?" (Four people come forward and sit at the table facing the judge.)
Judge: "Good morning. Which one of you is Mr. Andrews? Okay, will you begin, Mr. Andrews?"
John Andrews: (stands) "This is a case about my failure to get a $700 cleaning deposit returned, Your Honor. I rented a house from Robertson Realty at 1611 Spruce Street in Rockford in March 20xx on a month-to-month tenancy. On January 10, 20xx, I sent Mr. Robertson a written notice that I was planning to move on March 10. In fact, I moved out on March 8 and left the place extremely clean. I know it was clean because I spent eight hours, a lot of them on my hands and knees, cleaning it. In addition, all of my rent was properly paid. A few days after I moved out, I asked Mr. Robertson to return my $700 deposit. He wrote me a letter stating that the place was dirty and he was keeping my deposit.
"I have with me a copy of a letter I wrote to Mr. Robertson on March 15 setting out my position in more detail. I also have some photographs that my friend, Carol Spann, who is here as a witness, took on the day I moved out. I believe the pictures show pretty clearly that I did a thorough cleanup." (John Andrews hands the letter and pictures to the clerk, who hands them to the judge.)
"Your Honor, I am asking not only for the $700 deposit, but also for $1,400 in punitive damages, which the law of this state allows a tenant when a landlord improperly refuses to return a deposit."
Judge: "Mr. Andrews, will you introduce your witness?"
Andrews: "Yes, this is Carol Spann. She helped me clean up and move on March 7 and 8."
Judge: (looking at the pictures) "Ms. Spann, were you in the house the day John Andrews moved out?"
Carol Spann: (standing) "Yes, your Honor, I was–and the day before, too. I helped clean up, and I can say that we did a good job. Not only did we do the normal washing and scrubbing, but we waxed the kitchen floor, cleaned the bathroom tile, and shampooed the rugs."
Judge: (turning to Mr. Robertson) "Okay, now it's your turn to tell me why the deposit wasn't returned."
Harry Robertson: (standing) "I don't know how they could have cleaned the place up, your Honor, because it was filthy when I inspected it on March 9. Let me give you a few specifics. There was mildew and mold around the bathtub, the windows were filthy, the refrigerator hadn't been defrosted, and there was dog–how shall I say it–dog manure in the basement. Your Honor, I have brought along Clem Houndstooth as a witness. Mr. Houndstooth is the tenant who moved in three days after Mr. Andrews moved out. Incidentally, your Honor, the place was so dirty that I only charged Mr. Houndstooth a $200 cleaning deposit, because he agreed to clean it up himself."
Judge: (looking at Clem Houndstooth) "Do you wish to say something?"
Clem Houndstooth: (standing) "Yes, I do. Mr. Robertson asked me to come down and back him up and I am glad to do it because I put in two full days cleaning that place up. I like a clean house, your Honor, not a halfway clean, halfway dirty house. I just don't think that a house is clean if the oven is full of gunk, there is mold in the bathroom, and the insides of the cupboards are grimy. All these conditions existed at 1611 Spruce Street when I moved in. I just don't believe that anyone could think that that place was clean."
Judge: "Mr. Andrews, do you have anything to add?"
John Andrews: (standing up) "Yes, I sure do. First, as to the mildew problem. The house is 40 years old, and there is some dampness in the wall of the bathroom. Maybe there is a leaky pipe someplace behind the tile. I cleaned it a number of times, but it always came back. I talked to Mr. Fisk in Mr. Robertson's office about the problem about a month after I moved in, and he told me that I would have to do the best I could because they couldn't afford to tear the wall apart. As to the cupboards and stove, they are both old. The cabinets haven't been painted in ten years, so, of course, they aren't perfect, and that old stove was a lot dirtier when I moved in than it is now, because I can tell you I personally worked on it with oven cleaner for over an hour."
Judge: "What about the refrigerator, Mr. Andrews? Was that defrosted?"
John Andrews: "No, your Honor, it wasn't, but it had been defrosted about three weeks before I moved out, and I thought that it was good enough the way it was."
Judge: "Okay, if no one else has anything to add, I want to return your pictures and letters. You will receive my decision by mail in a few days."
Now, I have a little surprise for you. The case I just presented is based closely on a real small claims case. As they used to say on Dragnet, "Only the names have been changed to protect the innocent." And I have another surprise for you. I spoke to the judge after the court session. Here is how he decided the case.
"This is a typical case in which both sides have some right on their side. What is clean to one person may be dirty to another. Based on what I heard, I would have to guess that the old tenant made a fairly conscientious effort to clean up and probably left the place about as clean as it was when he moved in, but that the new tenant, Houndstooth, had much higher standards and convinced the landlord that it was filthy. The landlord may not have needed too much convincing since he probably would just as well keep the deposit. But I did hear enough to convince me that Andrews, the old tenant, didn't do a perfect job cleaning up. My decision will be that Andrews gets a judgment for the return of $450 of the $700 deposit, with no punitive damages. I believe that $250 is more than enough to compensate the landlord for any damages he suffered as a result of the house 'being a little dirty.'"
I then asked the judge if he felt that the case was well presented. He replied substantially as follows:
"Better than average. I think I got a pretty good idea of what the problems were. The witnesses were helpful and the pictures gave me a pretty good idea that the place wasn't a total mess. Both sides could have done better, however. Andrews could have presented a witness to testify to the condition of the house when he moved in if, in fact, it was truly a lot dirtier than when he left. Another witness to testify to the fact that the house was clean when he moved out would have been good, too. His friend, Carol Spann, seemed to be a very close friend, and I wasn't sure that she was objective when it came to judging whether or not the place was clean. The landlord, Robertson, could also have done better. He could have presented a more disinterested witness, although I must say that Houndstooth's testimony was pretty convincing. Also he could have had pictures documenting the dirty conditions and an estimate from a cleaning company for how much they would have charged to clean the place up. Without going to too much trouble, I think both sides could have probably done somewhat better with more thorough preparation."