small claims court

When Can a Small Claims Plaintiff or Defendant Use an Attorney?


In general, attorneys are not allowed to represent parties in small claims court. In nearly all cases, the parties represent themselves in a court trial. However, this does not mean an attorney cannot help a litigant in a small claims case. Here are some free attorney tips on when an individual litigant can use the services of an attorney in a small claims court case.

1. An Attorney Can Help a Plaintiff or Defendant Prepare for a Small Claims Court Trial.

A little preparation and organization can go a long way towards winning in a small claims trial. An attorney hired by a plaintiff or defendant in advance of the court trial date can help that part determine which documents or evidence are relevant and important, and which are not.

An attorney can also help a party collect evidence needed for a small claims court trial by assisting with the subpoena process and/or by making public records requests on behalf of a party.

Drafting a “Trial Brief” for a party is also a great way an attorney can help a small claims litigant. A trial brief is usually a document that presents the main facts and issues of law to the court in a way that allows the judge to see quickly what the trial is about. Points of law can be briefed in a trial brief by an attorney of your own choice, and it can lead a judge to focus in on the correct area of law for your arguments and evidence. A well crafted small claims court trial brief can help a party win by putting their case in the best possible light, with all of the important details.

There is no law or rule that prevents a party from hiring an attorney to help prepare a litigant for a small claims case or trial.

2. An Attorney Can Represent a Small Claims Litigant in an Appeal or Trial De Novo.

In California small claims court, a defendant who loses a small claims case can appeal to the Superior Court and get a “trial de novo”, which means new trial. Such a trial de novo is available only for defendants who lose a small claims court trial.  Attorneys are allowed to represent the parties in a small claims “trial de novo”. (See California Code of Civil Procedure section 116.530(c).)

There are also some rare cases where a party may make an appeal via a “writ” to a federal court or court of appeal due to a legal issue, such as an alleged constitutional rights violation. In these types of “writ” appeal, an Attorney may represent a small claims litigant.

3. Attorney Can Represent Small Claims Plaintiffs in Judgment Collection Efforts.

A party who wins a small claims judgment and becomes a “judgment creditor” may hire an attorney to handle the collection process. For many small claims litigant, the judgment collection process is the most frustrating and confusing part of the entire small claims court process.

It is common for a judgment creditor to hire an Attorney to represent them in the collection of a judgment. Many attorneys will charge a flat fee for such services, and some will charge a percentage of the amount collected on a judgment.

If you need the services of an attorney to help you prepare for a small claims court trial, to make an appeal of your case or a legal issue, or to help you collect a judgment, don’t be afraid to go attorney shopping. It is your right to hire a licensed lawyer and use their services in these aspects of a small claims court case if needed.

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*Copyright 2018 Law Office of Christopher Dort.  All Rights Reserved.

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