(Questions People Ask Me at Gun Shows)
GREAT STAKES IN SMALL CLAIMS
The maxim is de minimis non curat lex, the law does not concern itself with trifles. Certain trifles are of great import to the persons involved. For these persons Small Claims Courts have been created. These courts have jurisdiction over cases involving a few thousand dollars. This may be a fortune to the poor person who has been cheated.
The service of process[i] may be by certified mail, which is cheaper than a process server. Courts provide forms and instruction sheets for plaintiffs to start complaints.
Lawyers are sometimes banned from small claims. Corporations are artificial persons and may be required to appear through a lawyer. State laws and especially court rules must be consulted. The collected court rules for a given state is an intimidating book, but Small Claims has its own section of the book.
The court rules stress informality and the rules of evidence are loosely applied. However, this may affect the credibility of the evidence. Witnesses typically want to provide affidavits rather than appear in court. An affidavit can be written in blood and notarized with Holy Oil; it is still just a piece of paper. The witness should be subpoenaed. The circuit clerk will have forms for this purpose. Subpoenas must be served by neutral parties; the court may have a local rule on who can do this.
Litigants frequently demand that the judge check such and such or call so and so. He will not. The judge is not an investigator; unless the evidence is brought into court and put under his nose, he will never know it.
Small Claims has been used to review denials of gun permits. It is superior to the use of administrative bodies. The rules of evidence and informality of both institutions may be identical; however, the administrative body is run by bureaucrats who will typically have an agenda to promote. The Small Claims judge will at least be a judge and have some allegiance to justice.
In Small Claims the plaintiff has the burden of proof. She must demonstrate by clear and convincing evidence that something is true. If she fails, the case can be taken to a higher court for a new trial in front of a new judge. In this higher court the rules of evidence will apply, procedures are formal and a litigant may be trapped by technicalities. I saw one plaintiff fail in the higher court because he could not recite the formula that would make his photographs admissible evidence. If justice still fails, the matter can be taken up the chain of appellate courts. In these courts the judge below must have made a legal error, not simply have come to the wrong decision. The appellate courts should not be entered without a native
[i] Delivery of the lawsuit to the defendant.
Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense.
Please send questions to Kevin L. Jamison 2614 NE 56th Ter Gladstone Missouri 64119-2311 KLJamisonLaw@earthlink.net. Individual answers are not usually possible but may be addressed in future columns.
This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney.