So, you loaned someone $15,000 and they never paid you back. All your efforts to pursuade the deadbeat to pay you back have fallen on deaf ears, so you have decided you are going to have to sue.
Just how do you do that? You could go to Small Claims Court and sue, but the limit there is $10,000 so you would be waiving the remaining $5,000 just for the convenience of going to Small Claims Court.
Can you hire an attorney and sue in Superior Court? Absolutely, but then you’ll have to pay the attorney. Contrary to what many people think, you do not get your attorney fees back from the other side if you win UNLESS there is a contract or statute that provides for attorney fees. In our example, if you loaned the money only on a verbal promise to pay it back, or if your written agreement does not say anything about attorney fees, then you don’t get them back. So you are going to have to pay the attorney out of your own pocket, and even if you can find one who will take the matter on a contingency basis, taking a percentage of the judgment, you are back to giving up a big portion (typically 33% to 40%) of the amount owed.
But you are not without solutions. You can represent yourself and sue the person who owes you the money. This article will show you how to sue someone without an attorney.
If your case doesn’t warrant an attorney, the best guide I have found is by Nolo Press, which takes you by the hand and shows you step by step how to pursue your case in California Superior Court. Click on the following image to get the guide at considerable savings.
If you are outside of California, here is the guide for you:
Represent Yourself in Court: How to Prepare & Try a Winning Case, is an outstanding self-help litigation book. If, understandably, you can’t afford Civil Procedure Before Trial (see below), then this is the minimum investment you must make if you want to maximize your chances of winning. This guide is so helpful in explaining the process that I sometimes provide copies to my clients so they can better understand what I am doing. Even if you have access to Civil Procedure Before Trial, this offers a nice supplement since it explains things in layman’s terms.
The following video gets down to the mechanics of pursuing a lawsuit, including how to file a complaint and where to find the forms. Also, the video explains a fourth alternative, which is representing yourself with the assistance of an attorney. He refers to this as “unbundled legal services”, but the actual term is “limited scope representation”. This is a fairly new phenomenon, allowing attorneys to handle parts of a case, such as filing and serving the complaint.
This approach will only work with the most basic, check-the-box complaint forms. Even then, they are a little risky. When you draft and file a complaint, it must contain all the essential elements of the causes of action. For example, for a breach of contract action, you must prove that there was a valid contract, that the defendant materially breached the contract, that YOU performed under the contract, and the damages you suffered as a result of the defendant's breach. If you forget any of the essential elements, the case could go all the say to trial, and the other side could dispose of your action with a motion that demonstrates that your complain fails to allege a crucial element. I've seen experienced attorneys who have filed an action for breach of contract, but forgotten to allege performance by their own client.
Fortunately, the forms, for the most part, allege all the essential elements. If your action is not one that can be set forth on one of these forms, then plan for some time at your local law library. Go to the reference desk, and ask where you can find California Forms of Pleading and Practice. This is about a 35-volume set, and contains just about every imaginable cause of action.
Most people represent themselves in court because they cannot afford an attorney or, as discussed above, the dollar amount involved does not justify the cost of an attorney whether you could afford one or not. But in either case, please consider using an attorney to review your documents. Paying an attorney for an hour of his or her time to review the complaint, for example, could ultimately save you 40 hours of your own time if you avoid a motion that challenges your complaint on the basis of a defect.
If you are going it alone, or if you just want to understand what your attorney is doing, here are some excellent additional reference materials:
Civil Procedure Before Trial is the civil litigation bible in California. All judges are provided a set of these guides and they are what the judges refer to when they are deciding procedural matters. They are pretty expensive to buy, but you can use them for free at any law library. As far as I know, every county has at least one law library, usually near the courthouse. If your financial circumstances are such that you simply can’t afford an attorney and you are trying to navigate the legal system by yourself, I cannot imagine trying to do so without access to Civil Procedure Before Trial. Even after more than 20 years of litigation, I refer to these volumes on an almost daily basis. And even if no law library is convenient to you and you are forced to buy these volumes, consider that the cost is less than what you would pay for three hours of an attorney’s time, on average.
Incidentally, judges and attorneys refer to this set of guides as “Weil and Brown”, referring to the judges that wrote it. Technically it is what is referred to as a “secondary source” since it is not case law, but it is so well regarded that it is permissible to cite to it directly. If you look on the first few pages it provides the proper citation format to be used when citing the materials in a brief. With these volumes in hand, preparing or defending against a motion is far easier since all of the law and procedures are spelled out; you need only quote from the text.