How to Decide Whether or Not You Should Go to Court
If you go to court, you need to be prepared
It’s kind of nerve wracking,” explains the young man outside the doors of the Concord Circuit Court. “This was the first time I’ve bought a car, first time I’ve been in mediation or been to court.” The 21-year-old admits it been a tough year — last March he dropped $3,500 for a car and a month or so later the timing belt went and seized the engine. He’s convinced he was sold a lemon and is in small claims court looking for justice — and $2,000.
Just then a suited man with a calm professional demeanor approaches. He’s the court’s mediator and presents the car dealer’s final offer — $500. The young man is as immovable as his car, which, by the way, he still needs to make monthly loan payments on and keep insured. “I get around on a long board,” he adds, and explains that it’s like “a long skateboard.”
Going to court is not for the faint-hearted. “I make my living as litigator,” says Portsmouth lawyer Sanford Roberts, a 40-year veteran of the law, “and I advise my clients to stay out of court. They’ll be unsatisfied even if they win. It takes time, it’s aggravating and expensive.”
A civil case is a lawsuit brought by private party against another to compensate a private wrong such as a breach of contract, encroachment or negligence. While large personal injury settlements are newsworthy, they are rare. Fewer attorneys are dazzled by the potential of big verdicts and their typical one-third contingency fees because of the long delays (measured in years, not months), the pressure on plaintiffs to settle and corporations to delay (or use binding arbitration) and the state’s stingy history of providing awards to plaintiffs.
So, if you are paying an attorney and expert witnesses to build a case that may take a year to be heard, you have to be more practical than principled. “Everyone wants justice,” says Bill Quinn, a Manchester attorney, “but it must be evaluated from an economic standpoint. Lawyers think in terms of the worst-case scenario.”
“They may get some money,” he adds, “but it may cost $4,000 to get a $1,000 judgment.“
Some people, Quinn says, think it’s possible to bluff — threaten court action and then settle at the last minute. “Lawyers have to build a case as if they’re going to court,” he says. “You have to be ready. If negotiations fall through, the court is not going to give you time to prepare your case.”
If the harm is less than $7,500, it is considered a small claim and it goes to district court. It is a court designed for commoners — like the 1980s reality television show, “The People’s Court.” Most people who use it are first-time users and they tend to come without a lawyer. The governing statute (RSA chapter 503) sets forth an egalitarian goal to be “simple, speedy and informal.”
“For the average person, going to court is a once-in-a-lifetime experience,” says Administrative Judge Edwin Kelly. “We know they are scared to death.” His aim is to make the process easier for the user. And this means getting it done faster — simplifying the paperwork by online filing, channeling all court calls through a central call center and mandatory mediation. A new pilot program has been introduced to move cases immediately to mandatory mediation — what they found is that many of these cases aren’t disputes at all.
Of the 190,000 cases filed in the Circuit Court, 40 percent are big companies trying to collect a debt. “In most cases,” Kelly says, defendants agree with the judgment but “don’t have the money. It’s easy to prove a case; the tough part is getting paid.”
The court referee then helps arrange a payment plan. But this doesn’t guarantee regular payments. While the court can garnish wages or attach real estate, income from Social Security and many forms of public assistance including TANF (temporary assistance for needy families) and disability is exempt.
If a settlement is not possible and a court becomes the last resort, it is important to remember a few basics. Know the process, read the materials carefully and understand the steps. If you miss a court date, you automatically lose.
Identify the precise law that was broken and comprehend the exact words and their meaning. Build your case around the law and find evidence to back it up. Remember courts don’t investigate — that’s your job. (They won’t even help you find the defendant’s address to notify them of the suit.)
And don’t forget to leave the drama at home. Keene Attorney Quinn Kelley is occasionally hired to coach plaintiffs before they go to small claims court. There is a tendency, he says, to use the court to vent about the other party or ramble on about one injustice or another. Kelley advises, “Stick to the facts that relate to the issue. Don’t get into other noise” that clouds the case.
Back at the Concord Circuit Court, after two hours of wrangling with the used car dealer (and turning down a $500 offer), the earnest and principled young man is finally about to get his chance to present his case in court. But unfortunately, he doesn’t know it — he missed the fine details that say the process moves from “mediation” to the “merits of the case.”
Without his witnesses, he can’t move forward and asks the judge for a continuance. The judge and the used car dealer’s attorney scoff at the idea — especially at this point in the day. Finally, the young man’s wishes are granted but he must pay for the defendant’s attorney’s fees for the last two hours.
There goes another $500. Now, he’s out half what he hoped to recover with no guarantees his next trip to court will be more fruitful. “You have an obligation,” the judge tells him, “to understand the rules.”