There are probably a whole host of analogies that can be used to explain what it is like suing someone, or being sued, in a court of law, for those who have never had the pleasure. But I’m not sure that getting a prostate exam is the best analogy – litigation is not quite as pleasant and it’s a bit more invasive.
I am not sure that any one common experience can quite capture how inconvenient, time-consuming, difficult, intimidating, unpredictable, costly, invasive and often just plain painful, court can be – even small claims court – whether you’re doing the suing or someone is suing you.
If you have thousands, and sometimes tens of thousands, of dollars to hire an attorney to represent you and do most of the work for you, it’s not always a terrible experience. If you do not have that sort of money lying around and you’re considering a lawsuit, or worried about being served with one, you’re going to be in for quite a shock. Whether it is a ‘Small Claims’ or a ‘General’ civil suit it makes little difference in practice. You can read about the ‘Cost of Small Claims Court vs. Online Arbitration’ in another article I wrote if you’re interested in why it’s often not just a matter of a couple hundred dollars for filing fees – the costs add up.
The best way to describe the experience to the uninitiated is to ask you to imagine a few situations you are likely familiar with all rolled up into one. Litigation is like contesting a speeding ticket in front of a judge, completing your own tax return and then being audited, but instead of the auditors coming to you, you have to go to them.
Litigation is much more involved than fighting a speeding ticket. To contest a ticket all you have to do is check a box on the back of it and mail it in, or possibly go to the court-house to book a trial date. You do not have to file a plaintiff’s Statement of Claim with all the detailed information about yourself and the case you intend on presenting in court to the judge, you do not have to gather all the evidence from various sources to prove your case, you do not need to pay to get documents notarized and make copies of everything for the court and the defendant, you do not need to know the prescribed way to properly serve the statement of claim and copies of the evidence on the defendant so your case does not get adjourned on a technicality, nor do you have to file everything in person with the court, and you do not have to spend hours trying to figure out the often cryptic procedures and rules of the court that must be followed for any chance of success.
As frustrating as it can be trying to complete your own tax return and determining what you can legitimately claim and what you cannot, the rules and procedure of court can be equally frustrating to decipher. Even lawyers sometimes have a hard time with them, and often make fatal or near fatal mistakes.
As with a tax audit, you have to collect and present evidence to prove your claim is legitimate and possibly answer some probing questions into some personal aspects of your life. At least in a tax audit those answers are not public. With litigation that information is open for public consumption – documents filed in court are available for the public to search and read. So if you’re suing over some type of augmentation surgery gone horribly wrong, you might want to consider arbitration instead since it can be kept private and confidential.
One nice aspect of a tax audit is that the inquisition comes to you. You don’t get that perk with a lawsuit. You often have to make multiple trips to the court-house, wait in lines, and sit in court room for hours until you’re called by the judge to present your case.
Does anyone have a better way to describe their experience with litigation? If so, please share it here in a ‘comment’ to this post. Horror stories welcome.
After many months of quietly re-engineering our web app and our services, we are very pleased to announce the grand re-launch of eQuibbly.com with new features, new services and a revamped user interface that will make it much easier to use.
Now you can pay one low flat-fee for a former Official Trial Judge to arbitrate your dispute online and, within two weeks, hand down a legally-binding decision that is enforceable in a court of law in the U.S., Canada, the U.K., Australia and South Africa. It doesn’t matter where the parties to the dispute are located since arbitration laws in these countries allow for cross-border enforcement of the judgment.
eQuibbly now specializes in online arbitration at very affordable rates conducted by highly qualified Judges who have presided over trial courts in the U.S. and Canada. The whole process takes place online in one secure location where the parties explain their disagreement, upload evidence, answer the Judge’s questions, and receive an official written judgment. It is a simple, private, convenient and cost-effective way for individuals and companies to resolve disputes without the aggravation and expense of litigation.
If you have any questions about eQuibbly’s new service, please contact us by chat, phone, or email found at the bottom of our home page. We also appreciate any comments.
There is a common misconception that using small claims court is an easy, quick and cheap way of resolving a dispute. The reality is that it is not easy, nor quick, nor cheap.
Although there are many other compelling reasons to use online dispute resolution rather than small claims court, one of the most significant is the cost savings. Even when attorneys are not used, there are simply more costs associated with trying to resolve your dispute in small claims court. It should be noted, however, that it is extremely difficult to provide an accurate cost of going to court since many costs depend on the actions and decisions of the other party and the judge. It also depends on how “cost” is defined. It should be noted that rules and procedures vary by State and specific jurisdiction where your case is heard.
To file a suit in small claims court, both the plaintiff and the defendant will need to pay a filing fee. The amount varies from about $15 to $200 depending on the jurisdiction as well as the dollar value being claimed. The plaintiff pays to file the statement of claim and the defendant pays to file the statement of defense.
Some jurisdictions do not allow attorneys in small claims court. Even so, since failure to adhere to the court’s complicated procedures and technical rules could leave one at a disadvantage, to have the best chance of winning, consulting with an attorney beforehand would be prudent. For a decent attorney you should expect to pay at least $250 per hour and often more. Assuming a two-hour consult, that is at least $500.
Time is money. Reading and understanding the rules and procedures, and completing all the forms correctly, often takes longer than one might expect. One example is the requirement in most jurisdictions that certain documents be notarized or signed in front of a person authorized to take oaths and affirmations—typically a lawyer, a court clerk, or a licensed Notary. Assuming you value your time at $40 per hour, disregarding all other out-of-pocket expenses, the cost of your time alone can be seen below:
(travel to court to file suit and for trial, waiting in line, filling out forms, signing forms in front of a notary)
|Supporting Your Case
(collecting evidence, finding witnesses, serving defendant)
|Reviewing claim closer to trial
(since the trial will be months after the incident and months after you filed the claim you won’t remember the details)
(You’re not given a specific time – you’re given a window of time where you must be in court waiting for your case to be heard)
These costs above do not take in to consideration the additional time that will be required if the defendant does not show up in court on the scheduled day and later asks the court to re-open the case for trial. Nor if the defendant does show up but asks for an adjournment to a later date. In some jurisdictions there also is a mandatory pre-trial hearing or mediation where the parties must meet with a representative of the court to discuss the case and determine whether the issue can be settled without a trial.
Time Off Work
In most instances it will be necessary to attend court during the work week, both to file the initial paperwork and for the trial, and possibly to attend a pre-trial hearing. This requires time off work on two or three days–this could be anywhere from five hours to ten hours. Assuming an hourly wage of $40, that is between $200 and $400 of lost wages.
When a lawsuit is filed, the defendant must be given formal notice in writing that they are being sued along with all the paperwork and supporting evidence. In most jurisdictions, the plaintiff will have to bear this cost which could be upwards of $30 to $100 for a courier or licensed process server.
Total Cost of Small Claims Court
Based on the assumptions above and depending on the circumstances and the value a person places on their time, litigating a case in small claims court could cost anywhere from $100 to $2,000, if that person is self-represented. If an attorney is retained, it will probably cost at least $2,000 more since it is unlikely an attorney would accept a case for less given the responsibilities and liabilities.
Other Possible Costs and Points of Note
There are other possible costs. They are not typical, but circumstances may dictate they be incurred. For instance, since written witness statements are not usually acceptable in court, if the testimony of a witness is needed, he or she will have to attend the trial and their expenses and a small fee will have to be paid. The other party may also bring a ‘motion’ for one reason or another that may require another day in court at a later time. In some jurisdictions there is also the slight possibility that at the end of the trial the judge may grant the defendant an appeal which would mean another attendance in court for both parties. It should also be noted that small claims judgments are public information and could appear on your credit report, affecting your credit rating.
eQuibbly offers an alternative to small claims court litigation. eQuibbly offers a simple, private, and cost-effective way for individuals and companies to resolve disputes without the aggravation and expense of litigating in small claims court. A former trial Judge will conduct an arbitration online and after hearing the case, hand down a legally-binding decision that is enforceable in a court of law.
Below are excerpts from an article written by Maurits Barendrecht, A Professor of Private Law and Academic Director Tilburg University and Hague Institute for Internationalisation of Law: Online Courts Imminent.
“In Canada and the US, the trend towards online platforms rides on a wave of indignation about the fate of self-represented litigants. A very large proportion of users of courts cannot afford a lawyer. Others do not want to hire a lawyer, because they want to stay in control of the process themselves, needing guidance instead of directions. A well-received study by Julie MacFarlane also shows that court forms are complex, lengthy and difficult to understand, even for trained professionals. Most of these litigants end up being disillusioned about the court experience.”
“Dutch courts developed a prototype for a platform for neighbour disputes supporting diagnosis, negotiation, legal information and adjudication. Judges will be accessible online, but can also go to people’s homes in order to help implement solutions on the spot. More generally, the trend is towards a combination of online information sharing, replacing the need for repeated intake of the same problem by many professionals, in combination with more close and more human interaction.”
Below are excerpts from Julie MacFarlane’s study mentioned above:
“All the SRL’s [Self-Represented Litigants] interviewed spoke about their experience with completing court forms, and often numerous subsequent procedural aspects of their case. In many cases, these process issues dominated their experience and thus the interview; in most interviews, the process dimensions of the SRL experience – both negative and positive, but often negative – were talked about a great deal more and at greater length than their outcomes. In the 25% of cases which were concluded by the time of the interview, it was evident that the procedural aspects of the experience – – including the completion of court forms, which was often the first time a SRL realized the scale of the challenge they faced – were at least as important to the individual, as they recalled their experience, as the actual outcome.”
“Many SRL respondents described how difficult they found court forms to complete. The problem is exacerbated by the fact that, as one court clerk put it, “there a million forms out there.”135 Sometimes the clerk as well as the SRL is also seeing a particular form for the first time.”
” Virtually every SRL in the sample complained that they found the language in the court forms confusing, complex and, and some cases, simply incomprehensible – referring to terms and concepts with which they were unfamiliar. This reaction was the same across all types of litigant no matter what court or province they filed in (although there were somewhat fewer complaints about small claims court forms and procedures, these were not devoid of criticism either)…In every case, significant time and effort is required to complete court forms.”
British Columbia passes law to Encourage use of Online Dispute Resolution instead of Small Claims Court19 Feb
The B.C. government is still pursuing its online arbitration and online dispute resolution initiative. It unveiled plans almost two years ago to take small civil claims and condominium disputes out of the courts and put them online. The B.C. government is putting a task force together to bring this initiative to fruition.
“Both individuals and business owners will find this a convenient and affordable way of reaching agreements,” B.C. Attorney General Shirley Bond said in a statement. “Few people want to go to court to solve a legal dispute, which can be costly, intimidating and time consuming. A tribunal offers an innovative alternative to settling a dispute in a faster, more amicable way.”
The government is hoping to launch the online arbitration infrastructure in 2014 as a way to cut legal fees and travel costs for parties as well as to reduce the backlog of cases in the courts.
With the Civil Resolution Tribunal Act, the B.C. Ministry of Justice is predicting a 60-day dispute resolution process, compared with the 12 to 18 months it can currently take for cases to wind their way through the province’s Small Claims Court. The tribunal will be available for disputes worth up to $25,000 where both parties agree to participate. However, it will be mandatory in certain types of property disputes involving condominiums.
The Act mandates that disputing parties are to represent themselves in the tribunal proceeding, however provision is made for legal representation in certain circumstances.
The tribunal will progress in four stages, with participants moving to the next stage only if they are unable to reach an agreement:
- Self-Help Dispute Resolution using online, interactive tools with information, tips and templates to help the parties reach a settlement;
- Supervised Negotiations Online;
- Direct Intervention by a Case Manager to Facilitate Settlement; and
- Online Tribunal Hearing where a final decision is made – the order can be filed with the court giving it the same force and effect as if it were a judgment of that court.