Getting the most for your legal dollars in small claims court

The Small Claims Court process is meant to be a streamlined, easy to navigate process that is friendly to self-represented parties. Unfortunately, the process often does not live up to its mandate. Instead, actions in the Small Claims Court can be extremely time consuming and costly. While many parties choose to represent themselves, it is becoming increasingly clear that in order to be successful, you will require the help of a lawyer, thereby increasing the costs of the process dramatically. With that said, there are ways that you can reduce your costs; this article will provide some useful tips in how to get the most for your legal dollar.

Firstly, do not be afraid of hiring an articling student or a junior lawyer. They are fresh out of school, with new ideas and strategies, and are hungry to work hard and prove themselves. Articling students and junior lawyers are often much more familiar with the Small Claims Court process, and, charge significantly less per hour.

The best way to get the most for your legal dollar is to ensure that you provide your lawyer with all of the facts of your case up front, being as clear and as detailed as possible. This includes advising of the strengths and weaknesses, the good and the bad. If a lawyer is thrown a curveball half way through the litigation, you can expect that their costs will increase as they may have to change their entire strategy, and to some degree, their previous research and preparation may be rendered partially or entirely useless.  A lawyer who knows everything about the case up front can better deal with any possibilities and confront any potential shortfalls in your claim immediately. From a strategy perspective, this is also beneficial as it shows the court that you are being truthful and not trying to hide anything or mislead the court. A good way to ensure that your lawyer knows everything up front is to write out a point form summary of all the events that took place leading up to the litigation – lawyers and articling students are trained to read through voluminous documents, so don’t spare the details.

A point form summary will also help you know what documents your lawyer will require. In the Small Claims Court, the Plaintiff’s Claims and Defences must include all evidence on which you intend to rely. This means that, for example, if you are seeking damages for breach of contract, your lawyer will have to include the contract in your Plaintiff’s Claim materials. Ensuring that your lawyer has all the documents related to the litigation up front will also ensure your lawyer can effectively represent your interests. Now, when I say that your lawyer should have all the documents, I really mean all the documents. Let the lawyer determine what is relevant and what is not from a legal perspective. You may encounter trouble down the road if your lawyer discovers that additional documents exist that they were not aware of.

Prior to starting the litigation process, you should also consider the result that you hope to achieve. The litigation process is not suitable for those claims that are motivated by emotion or a desire for vindication. Recovery is limited to what you’ve actually lost (i.e. you will be awarded money). Generally, monetary judgments do not include an award for pain and suffering or mental anguish (except in some personal injury cases).  Consider the amount of money you are seeking, the amount you would ultimately like to receive, and the lowest amount that you would accept in order to walk away from the litigation.  Also be aware, before starting a claim, that if you sue someone and they defend themselves, you will need the Defendant’s consent to drop your claim against them (the theory being that they have spent time and money defending themselves, and it would be unfair for you to put them through that process, only to change your mind part way through the process).

When considering your loss, consider what evidence you might need to support that amount. For example, with regards to property damage claims, the general rule of thumb is that you will require at least three estimates for the cost of repair. In litigation, as a plaintiff, not only must you prove both that the other party is liable, but you must also prove that the amount of damages you are claiming is an accurate reflection of your loss.

Finally, and perhaps the most important piece of advice, is do not wait to contact a lawyer. There is a general limitation period of two years from the date the damage is discovered.  If you contact a lawyer the day before your time runs out to file a claim, you may end up having to file a claim without your lawyer having the time to properly consider the merits and the law, which could impair your ability to recover what you may otherwise be entitled to. Effective legal drafting takes time, and the only way to ensure that a pleading articulates your position in the strongest and clearest way possible is to ensure that your lawyer had time to draft it. Otherwise, a rush job will require amendments down the line, which again increase the time and cost spent on the file.

It is also important to remember that if you are successful in your claim, the legal fees that you can  

recover from the unsuccessful party in the Small Claims Court are limited to 15% of the damages claimed. Use the tips above, and you can ensure that you get the most for your legal dollar!

Victoria Boddy is an Associate with the law firm of BrazeauSeller.LLP.  She practices in the areas of litigation. Victoria can be reached at 613-237-4000 ext. 240 or vboddy@brazeauseller.com.  For more information about Victoria, please visit www.brazeauseller.com.