Why do I need a lawyer or Paralegal in Small Claims Court?
Often people wonder if they need a lawyer or paralegal in Small Claims Court or why they need one at all? After all, isn’t the Small Claims Court meant to be a “people’s court”? While that is true, the reality is that going to court on one’s own is fraught with dangers. This blog post describes a few of those hazards.
Naming the wrong party can be fatal
Often it is not so clear cut who the correct Defendant should be. For instance, does the Defendant act as a corporation or is it a sole proprietorship? (Do you even know what the difference is?) Consider the case where you name someone’s business name when really no such legal entity exists. In such case you would have gone through an entire Small Claims Court proceeding, and even if you win, when it comes time to collecting, there is no business entity to collect from?
Now, you may say, but I can just amend the Plaintiff’s Claim. Not so fast, in fact, often a court will make you amend your claim and start all over. And that comes with hazards. Consider the case of the poor woman we blogged about here who was forced to bring a fresh action because she named the Plaintiff wrong, only to be then told her claim was statute-barred for missing the limitation period (Learn more about Ontario’s Limitations Act here)! So, if on adding a new Plaintiff, a Small Claims Court judge threw out a claim, imagine when a defendant is named incorrectly.
A poorly drafted legal document such as a Plaintiff’s Claim or Defence can be fatal
Years ago we had a case where someone was suing her ex lover over monies owed. Our client had already prepared the claim on her own such that she retained us for trial only. The claim was an absolute mess. It read more like a Hollywood screenplay over fighting ex- lovers than a lawsuit. Had we prepared it, we would have kept it simple and avoided the drama. While we took the case because we felt she needed legal assistance, the reality is that our hands were tied because we had to work with the claim she had done. (It had been too late to amend and the client did not want to bring a motion and spend the extra money.)
While we were able to get a judgment for some of the claim, the reality is that had we prepared the court documents, our client would have obtained so much more. The point is that by thinking you’re saving money to do it on your own, you’re really losing out in the long run.
Not obtaining the right evidence can be fatal
Like any court proceeding, a Small Claims Court trial will also require that you prove your case with evidence. A judge is not going to tell you what you need to rely upon to win. How many self represented litigants have we gone up against where they show up to trial with virtually no evidence to support their claims against our client. As they are losing their claim, they often say “Well, we didn’t know we needed that…” but the judges have little sympathy for an ignorant claimant. Don’t make the same mistake. Let a law firm help you determine what evidence is necessary to win.
Failing to know the law is not an excuse
Similarly, there are rules that require parties to take certain steps. For example, did you know that if you fail to serve evidence within the time prescribed by the Rules of the Small Claims Court you can be precluded from relying upon it at trial? This is just one example of the numerous rules and procedure “even” involved in Small Claims Court.
While in some cases it simply will not be cost effective to retain a law firm, such as where the fee in dispute is under $3,000 (in which case I strongly recommend the (Mr. Small Claims Court Handbook) for those cases that involve significant sums such as $3,000 or more, it’s best to get representation.
Need to consult a lawyer or paralegal in Small Claims Court? Contact us now.