Be careful: the evaluation of a case is where most people make their greatest error. When you misjudge your case, you run terrible risks. You might miss an offer for settlement or resolution, or you might waste time pursuing a loser case. Remember, nearly every case has a winner and a loser. Thus, in nearly every case, someone did not evaluate their case properly and went ahead anyway and lost. Of course, there are cases in which both sides win, as when a judge gives a partial recover to a plaintiff.
All the decisions you’ll make in pursuing or defending your case will rest upon your initial evaluation of the case. So, an error here will mean errors later on. Despite the importance of properly evaluating a case, it’s where most people focus the least effort. It’s also one of the easiest steps in the process. So, it makes sense to do it right.
You evaluate your case in two steps. First, you evaluate by researching both the law and the likelihood of recovery. Both are important. And second, you confirm your research through consultation with an attorney (preferably) or by presenting a sample of your case to others to establish their evaluation. Lawyers use the term “slam-dunk” to refer to cases that are absolute 100% winners. Slam-dunk cases are rare. Most cases have some shade of uncertainty to them. That uncertainty might simply come from a defendant that is willing to lie to bolster his or her defense. Examples of slam-dunk plaintiff’s cases would be the following:
? Someone wrote you a check and the check bounced. You have the physical check with “Non Sufficient Funds” stamped on it by the defendant’s bank, and you bring that check to court. This is called “suing on the check” or “suing on the draft,” and theoretically does not require any additional proof of what services or goods the check was written for.
? You have an unpaid promissory note in the amount of $3,000 bearing the defendant’s signature, and you were present when he or she signed it. You also have evidence that you loaned $3,000 to the defendant on or about the time the promissory note was signed.
? Your parked car was rammed by a driver, who later confessed to being drunk at the time. You obtained the police report by going to the records department at the police station near where the accident happened, and the report clearly shows the defendant was at fault.
A defendant can have a slam-dunk case as well. Here are some examples:
? A plaintiff brings a claim against a defendant based upon a contract that was signed twelve years ago. That claim would clearly be barred by the statute of limitations.
? You had a poker night with your friends, and went in the hole to a friend by $500. Your friend brings a suit against you to recover the $500. This gambling debt is the result of an illegal contract and is not enforceable.
? A plaintiff will sometimes bring a claim against the wrong party. For example, a plaintiff might serve the wrong person with the same name, or sue the owner of a corporation when the corporation clearly was the appropriate defendant.
Most cases though, have arguable points on both sides. Typically, most slam-dunk cases settle, because they are so certain to result in victory for one side or the other.
If you have the more likely case with some shade of argument that can be offered by either side, you should evaluate your case to determine your chances of victory.
Evaluating the Legal Merits of Your Case
The underlying legal merits of your case are important. Most experienced lawyers though, might say that the merits aren’t everything–and they’d be right. There is always some maneuvering that can and should be done, and there is always the problem of collecting on judgments. You may have the best case in the world, but the defendant might be dead broke. In that case, you might as well have no case at all. But certainly the place to start is to evaluate the legal merits of your case.
Finding “The Claim”
When lawyer use the term “claim,” they are using the term as a term of art. A “claim” means a specific cause of action, a defined lawsuit founded on legal grounds and alleged facts which, if proved, would constitute all the “elements” required by statute or common law. For example, to have a cause of action for breach of contract there must have been an offer and acceptance by the other party, and a breach of obligations under that contract. For a tort claim, a party must have been negligent or intentionally wrongful, and that party must have caused injury. Claims are specific and defined. A plaintiff must fit his facts into a claim in order to be successful. Now, some lawsuits can have several separate causes of action, such as fraud, breach of contract, and debt, or negligence and intentional destruction of property.
Luckily, small claims courts are informal, so you’ll never need to use the term “negligence” to define your claim for the court. You simply need to state facts sufficient to raise a claim. In upper courts, the rules of pleading are more formal, and in some cases you would have to define your claim with more particularity and formality. But, in small claims court, you’ll just need to outline the facts and the judge will see if your facts fit an existing claim.
So, you need to figure out if your case constitutes a claim, or fails to constitute a claim. You begin this by performing legal research. In small claims courts, cases for breach of contract are the most likely. And, a large majority of contract cases are simply collection cases. Collection cases are where the breach of contract is clearly obvious, and the plaintiff is simply coming to court as a matter of course, to turn debt into judgment. In collection cases, often the defendant does not appear at the hearing. He or she recognizes the debt and does not object to it, but he or she simply does not have the money to pay, and so chooses to ignore the debt and the case. Because this book is focused on business owners, I suspect many readers will be pursuing or defending breach of contract cases.
Want to learn more?
Buy the book!
The Small Claims Court Guidebook from Entrepreneur Magazine and LearnAboutLaw .
The Small Claims Court Guidebook teaches you everything you need to win big in small claims court, without a lawyer. You’ll learn how to evaluate your case, prepare witnesses and evidence, collect judgments, and much more.