What is the Best Evidence for Your Small Claims Court Case? Attorney Tips


Whether you are a business owner suing in small claims court to get paid on an old invoice, or a tenant defending against a landlord’s charge against your security deposit, you will want quality evidence with you in court.

Parties to a small claims court trial who don’t have evidence to support their side of the story are at a disadvantage. Quality evidence that is well organized can help a small claims litigant reach their goals.

Small claims cases in California, and most other states, are conducted informally. Small claims trials usually function without the usual rules of evidence, including hearsay objections. (See California Code of Civil Procedure section 116.510; Cal. Judges Benchbook, Small Claims Court and Consumer Law sec. 4.18.)

“In most cases, the judge should admit all of a party’s evidence and thereafter determine its weight.” (Cal. Judges Benchbook, Small Claims Court and Consumer Law sec. 4.18, p. 67).

But what kind of evidence is the best in small claims court trials? Here are some Attorney written free tips to help you sort it out.

I. Witness Testimony Is Often Valuable. Failing to Bring Your Witnesses is a Mistake.

The parties to a small claims court trial have a right to present witnesses for live, in court testimony if it is relevant to the issues at trial. Live witness testimony is often given a high evidential value but judges, and may help paint a clear picture of a story than one person’s voice can do. Live witness testimony can also be used to confirm the testimony of a party.

For example, a witness in a small claims court trial may testify that the Plaintiff’s testimony about how a car accident occurred was correct, and that the witness saw it the same way with his/her eyes. Or a witness in a debt collection case may testify that they were present when the Defendant promised to pay back the loan, and thereby strengthen the Plaintiff’s case.

A common small claims court mistake happens when one party fails to bring a witness to the court trial to provide testimony. In general, a witness in a small claims court must be present in court on the day of trial to have the best effect. Judges will usually deny requests at trial for a continuance to get a witness.

Written statements by witness brought into court alone do not carry as much evidence weight as live testimony, because the statement or it’s source cannot be challenged in court by the opposing party.

However, a small claims court judge does have the power to take a witness’s testimony after the trial, or by telephone, or by continuing the trial in most states. (See California Code of Civil Procedure section 116.520.)

Witnesses can also be forced to appear in small claims court through a subpoena. In most jurisdictions, small claims court subpoenas can be issued by the court clerk’s office upon a written showing of good cause (declaration of good cause for subpoena) from the requesting party. See the court clerk’s office in your court for more info on subpoenaing a witness. California Code of Civil Procedure section 1986-1987 define the procedures for issuance and serving a subpoena.

Written witness statements are weaker evidence that live court testimony. Because of this, if there is a witness you need to give evidence, do all you can to get them into court. Subpoena them if you are afraid they will not show up.

If you have to bring a witness’ statement to court in writing alone, it is best to make sure the document is notarized so that the identity of the person speaking is verified for the court.

II. Photographs and Video are Powerful Evidence that is Easily Admitted in Court.

One of the most common and easy to fix mistakes or weaknesses in a small claims case is neglecting to bring photo or video evidence to the trial.

The common excuse of: “I have photos at home your honor, and my wife has a video on her phone. I can get them later for you?” — will not work out well for most litigants.

Photos and video are admissible in court and can help you win, if you bring them. Did you leave that apartment clean? You will want to bring photos to the small claims court trial if you can. Did that other driver admit to you she ran the red light? It would be great to have that video in the small claims trial with you, right?

The requirements for getting a judge to accept a photo or video in a small claims trial are simple. In general, the person who took the photo or video should be in court to authenticate it, and you should be able to present evidence on when, and where the photos were taken.

What if you don’t know when the photos were taken or where, or by who? Then you have a problem with the authentication of the evidence. The better a photo or video can be authenticated, the more evidentiary weight it carries.

Can you use video in small claims court? Yes. But be ready to show it yourself on your own device. Do not be afraid to ask a court clerk to make arrangements for you to play video evidence on a DVD or CD in a small claims court trial. Nearly all small claims courts can play video in those formats. They may have to search the traffic department for the “dash cam” video player, but they have one.

You should also bring a tablet or laptop computer into court if possible because it may be necessary to present video evidence on your own device if the court clerk gives you a hard time about court equipment. Be prepared for anything.

III. Business Records Are Evidence, and Their Weight May Be Greater When Authenticated.

Bills, invoices, receipts, and contracts are all great evidence. These documents tend to support the existence of agreements between individuals or businesses in business transactions. If you are suing to recover payments due to you for services rendered, or for breach of contract, you will be in the best position if you have written documents to prove up your claim. Claims of breach of contract are difficult to establish without written proof of the contract. Similarly, a defendant’s clam that they paid for a disputed service or product is difficult to prove up without a receipt. If you have written business records of this sort that may help your claim, make sure you bring them to the court trial with you.

Getting a small claims court judge to consider business records in a small claims case is relatively easy. Judges may consider such evidence without formal authentication or “laying of a foundation” as attorneys call it. However, the weight of business records evidence may be greater if the offering party can establish who created the record, when it was created, and the fact that it was created in the regular course of business.

The best way to authenticate a business record in court is provide witness testimony from the person who actually created the document. Testimony such as “I created this invoice myself in the regular course of business as I entered the defendant’s order . . .” is a great method of authenticating a business record.

IV. Subpoenas Are Not Evidence Themselves, But Can Be Used to Get Evidence You Don’t Have.

Subpoenas are court orders to a person or business requiring them to bring some thing, document, or their own person to court.

Most small claims litigants are unaware that they have the right to use the court’s subpoena power to force the appearance at trial of a witness or documents or things outside of their control. (See Cal. Code of Civ. Pro. sec 1985-1986.)

A party seeking to use a subpoena to get evidence should begin work on it as soon as possible after a trial date is set. There are specific notice periods for subpoenas to give the respondent to the subpoena time to comply. A continuance to get a subpoena satisfied is possible upon request to the judge, but it is always better to not need a subpoena.

In small claims court trials, it is usually the court clerk that will issue the subpoena on behalf of the party. To get a subpoena issued by a court clerk, a litigant must be able to state: 1) what it is exactly that they want produced for trial (person, type of document, specific piece of evidence); 2) the name and address of the person or business possessing the evidence; and 3) reasons why there is good cause for the use of a subpoena to get the evidence.

A person requesting a small claims subpoena does not need to prove that the evidence will absolutely help their case. In general, a statement of good cause for issuance of a small claims subpoena would simply state that the requesting party does not have access to the evidence without a subpoena, and that the evidence is expected to be relevant to issues in the trial.

Most small claims courts have a local for requesting a subpoena that can be picked up and turned in a the court clerk’s office. There may be fees involved with a small claims subpoena. The court clerk can give you details on how much time before trial is required for your subpoena.

What are common items that are obtained by subpoena? Witnesses that may not be friendly to the party who needs their testimony is a good example. Subpoenas are also frequently used to get business records from the opposing party, or video from a surveillance camera that the requesting party does not control.

V. Tips for Using the Evidence You Do Have in a Small Claims Trial.

Some common sense tips can be easily missed in court by parties who are nervous, overwhelmed, or distracted by the opposing party’s statements. Here is a quick reminder so that you don’t fall into this pit.

    1. Tell the Judge Exactly What Evidence You Brought.

It is very useful to explain to the judge what you have presented to the court. If there are photos, tell the judge how many there are, what they show, who took them, and when. If you have business records, do not expect a judge to immediately know what they are. Explain them, and what they show.

    2. Tell the Judge How Your Evidence Supports Your Argument or Claim.

It is not enough to tell a small claims judge what happened and what evidence you brought. It is better to explain to the judge how your evidence supports your side. Does that invoice evidence a promise to pay? Does that photo show you cleaned the apartment so well that it was better than when you moved in? Tell the judge. Does that receipt show not only that you paid, but also the price that you initially agreed to pay? Tell the judge.

OK- there you go. Good luck to you.

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