AN IMPORTANT SKILL TO LEARN: SUING IN SMALL CLAIMS COURT
How New Yorkers Who Can't Afford Lawyers Can Sue!

Just thought I'd pass on the wisdom because for some reason, I have never seen this info well-organized in one place on the internet. Be patient as I do this in parts -- here goes. If you have any suggestions, email me here (take out the word "spam")

I just finished suing a check casher and employer over a stolen, cashed paycheck incident I had in 2001 (during the Anthrax attacks). My final judgment is coming in a couple weeks.

NOTE: I AM NOT A LAWYER, just a regular New Yorker who did this all by trial & error.


HOW TO SUE IN SMALL CLAIMS COURT

I. Whether to sue

Always try to negotiate with people first. Call your nemesis and see if you can work out something.

Follow up by WRITING A LETTER stating the dispute, and that you will take them to court if it's not worked out. This is very important for some reason. See Nolo.com for more info on this (I didn't actually do this, though I should have).

If you're willing to settle, often you can get a good deal because people don't like going to court.

But don't be afraid to go to court yourself. Sometimes, this is the only way.

NOTE: You may want to write letters to a bunch of government agencies because you're pissed off. Go ahead but don't make this your only avenue. Go to court.

At first I did this, because when my check was stolen from the mail, I was told that it was not under the police jurisdiction but the postmasters' (who no longer exists, by the way).

I got the runaround with all these government bureau's "official investigations" that take months, even years. I also got TERRIBLE legal advice and ended up losing the first time in small claims court because some bozo at the Public Advocate (who also no longer exists) told me that I should go after my employer for lost wages, and then patly suggested I go to small claims court. They say stupid things like that because they just want you off their back.

I also wrote the news media at NY1.com, and they just sent me to a bunch of numbers and web sites that were semi-helpful, but more often no longer in existence. My time on TV was still to come (as you'll read later).

Little did I know what a waste of time this would be. Poor naive little me. Don't do what I did.

II. Finding a lawyer

LEGAL ADVICE IS SO IMPORTANT! I cannot stress this enough. However, lawyers are expensive. Most charge at least $200/hour to talk. This is how poor people do it.

Instead, send the message to everyone you know, "do you know a lawyer who's willing to give me some advice for cheap?"

Look for your local bar association or Legal Aid Society web sites (great for certain types of disputes). Tenant.net is great for landlord/tenant disputes.

Try to remember which of your friends actually decided to be a lawyer, and which ones are willing to help you. Even better, someone who can hook you up with Lexis-Nexis (the ultimate law research database) or a pass into their Law library. I suppose you can also go to the NY Public Library and inquire their law library - not sure if it exists. I did all my research on Lexis.com.

Check out the http://www.nolo.com site for really great, basic guidance through the system and advice.

Also, go to the bookstore for books on suing - lots of good Nolo books, and other "Law for Dummies" books there.

III. Researching the law

There are two main types of info you will be looking at:

Case law (they are published in digests called Reporters, eg North East Reporter, NY Supplement, etc.)
The actual law (eg NY Constitution)
Law Review (comments on the law and offers interpretation, explains revisions, etc -- Lexis.com)

Case law are actual cases that are written up in a summary form. In the Lexis.com, you can see not only what precedents might be set, but also the laws that pertain to each case.

For some reason Lexis make it hard for you to link directly to the law -- just look at the links in the case, eg. "commercial law (ucc) / article 3." Then go back to the main menu and look up the constitution section, and open up "commercial law" "article 3" -- there's boxes you click to open the menus.

Look for RECENT CASES that are like yours (law changes a lot, though the old cases are often interesting), then look at the law that pertains to it. Then, frame your argument around these laws -- not according to your own opinion.

In my case, I had to prove the check casher was liable. For example, there are no rules in Commercial Law regarding "how" you check ID. There are laws, however, on the fact that if a bank cashes a forged check (check cashers are held to this as well, I think -- but again, I'm not a lawyer), they are liable.

So instead of saying, "I'm suing because they didn't check ID," (I'd lose) I said, "I'm suing because they didn't authenticate my signature, which had been forged."

IV. Arbitration vs. judge

When you arrive at NY Small Claims Court in New York City (111 Centre Street), Nassau and Westchester counties, the cities of Buffalo and Rochester, you're able to choose between an arbitrator and a judge. An arbitrator is an experienced lawyer who serves without pay. Both sides agree have to agree to be tried by an arbitrator.

The hearing before an arbitrator is less formal, and you may not be as nervous as you might be before a judge. When an arbitrator determines a case, the decision is final and there is not further appeal by either the claimant or defendant. The fact is most small claims cases that are appealed hardly ever win, so this is a very reasonable option.

An arbitrator will apply the same law to your case as the judge would apply. Also, if you choose an arbitrator you will definitely be in and out -- if you choose a judge, you will have to come back, sometimes several times. This is because there usually are many arbitrators available and only one or two judges.

In my case, I went with an arbitrator. I waited around in a courtroom -- basically a big room with benches where everyone sits and waits for their name to be called, like in jury duty -- for a half hour before being called to the waiting room to wait for another hour to meet with the arbitrator. Not fun. Bring a magazine, or better, a friend. Moral support is a nice thing to have vs. biting your fingernails and eating the crap in the vending machines, next to the big sign that says, "NO SMOKING, EATING OR DRINKING IN THIS ROOM."

It was in this tiny little classroom-like room, and me and the defendant sat right next to each other. That was a little wierd. You really want to be prepared because it can be nerve-wracking. I'm not someone who gets very nervous, and even I felt a little stressed.

Be prepared... the next section is important for this.

V. Preparing your case for small claims court

DO YOUR RESEARCH! See section III.

Then read this FAQ from Nolo.com. It is extremely helpful.

Look nice and professional. Makes a BIG difference. But don't look pimped out either. In court, people Judge you -- remember that.

The Opening Remarks is very important (see above faq for guidance).

Winning a case is all about bringing EVIDENCE and WITNESSES (if you can). Be prepared for anything.

Winning is also about presentation, about what you let them see. This is why lawyers are snakes. It's part of the game. Be honest, but shrewd as well.

Also be concise. They get impatient very fast with long-winded, nervous explanation. They will sound rude and short. You have to understand that they see things through the law and are trying to filter and translate your babble into the law. Be calm, do not interrupt, be assertive but balanced. You want to seem like the mature, cool, RIGHT one.

I wish someone had told me this: when the arbitrator / judge asks you stuff, only answer their question. DO NOT VOLUNTEER STUFF IF YOU DON'T GET ASKED FOR IT.

Practice, practice, practice your opening remarks. Argue it with a friend, get someone to do devil's advocate with you.

Funny thing that could happen to you:

When I filed my first case against my employer, I got called by the People's Court (remember that TV show?). Apparently, the small claims court is public record so people can see your info.

You REALLY want to be prepared for something like this. Judge Milian will not hesitate to mock you if you give her the chance -- it's not just court, it's TV. The stagehands will pump you up to be really aggressive and entertaining. I gave them that and they gave me some back -- I told the judge that I was in grad school, and when she asked where, I did (I went to Harvard)... I was really sorry I said that, because after that Judge M seemed to have it in for me. I lost.

VI. Collecting Judgment

More on this if I win... check out NY Small Claims Court site for their advice.

Web Links on the Law
(If not linked, input these terms into Google. I'll supply it later.)

http://www.lexis.com
http://www.nolo.com
http://www.findlaw.com
http://www.courts.state.ny.us
http://www.tenant.net/Court/Howcourt/sclaim.html Official NY Small Claims Court site
http://www.housingnyc.com/resources/resources.html
http://www.rentlaw.com/smallclaims.htm
http://tenant.net
http://www.nypirg.com
ny constitution
legal aid
new york bar association
ny state banking department

Universities often have law services for students and the community. Call your local university law schools for more info.

Hope this was helpful.