Update: Mike’s Nuts and Bolts of Collection Law Seminar Papers

March 8th, 2012

Michael Deitch will be speaking at the Nuts and Bolts of Collection Law Seminar put on by the National Business Institute on March 29, 2012,  The Seminar will take place at the Doubletree Guest Suites at 303 W. 15th Street, Austin, TX 78701.  Registration begins at 8:30 and the Seminar will run from 9:00 a.m. to 4:30 p.m.

Mike’s papers for the seminar can be viewed here, along with the other presenter’s papers (PDF link).

For more information, or to register, click the link above.

Michael Deitch Will Be Speaking at the Nuts and Bolts of Collection Law Seminar on March 29, 2012

January 24th, 2012

On March 29, 2012, Michael Deitch will be speaking at the Nuts and Bolts of Collection Law Seminar put on by the National Business Institute.  The Seminar will take place at the Doubletree Guest Suites at 303 W. 15th Street, Austin, TX 78701.  Registration begins at 8:30 and the Seminar will run from 9:00 a.m. to 4:30 p.m.

Mike’s topics will include “Obtaining a Judgment: a Procedural Guide” and “Creditors’ Rights when a Debtor Files Bankruptcy”.

For more information, or to register, click the link above.

A Guide to Suing in Small Claims Court in Texas

January 3rd, 2012

Disclaimer:  This post is not intended to constitute specific legal advice or create an attorney-client relationship.  This is for informational purposes only.  If you have specific legal questions regarding a specific case or matter, then you should contact an attorney.

Often times a person or business that is owed a small amount of money or that has been injured can file a lawsuit by themselves in a small claims court.  These courts are often more economical and efficient in providing a quicker trial date, limiting discovery, and requiring immediate payment of the judgment. However, even though the small claims courts are thought to be the “people’s courts” due to their relaxed rules, navigating any legal system can be difficult.  I recently had the opportunity to represent a client in small claims court and thought I could provide some additional insight and guidance to those who are considering filing a lawsuit in the small claims courts.

How and Where Do I File a Small Claims Suit?

Every county in Texas has a small claims court.[1] Before deciding to file suit in small claims court, you must consider both the amount of money you are seeking to recover and where to file suit. The suit must be for an amount less than $10,000.00.[2] Suit must be filed in the county and precinct in which the defendant resides unless the defendant has promised to perform in a particular county—in which case you can file suit in that county.[3] Additional considerations, such as whether to request a jury or to hire an attorney to represent you in small claims court, are discussed below.

In order to file a claim in small claims court, you or your attorney must go to the clerk’s office and file a statement of claim under oath or file a sworn statement of the claim.[4] Typically, the clerk will have a blank form for you to fill out.[5] You will need to know the Defendant’s address and the amount you are suing for.[6] You will also need to describe the facts underlying your suit—i.e., why you are suing.[7] Once you file your statement and pay the filing fee, the judge or clerk will issue process for an officer of the state to serve the citation on the Defendant.[8] The clerk should assist you in how to have the Defendant served.  Usually, a constable or sheriff is given the citation and will try to serve the Defendant in person.  If this is unsuccessful, there are other ways to serve an individual or business, and the clerk should offer to provide assistance.

You should also make some additional considerations before filing suit in small claims court.  Lawsuits always require filing fees and sometimes additional expenses.  If you lose, you will not be able to recover these filing fees.  Additionally, if the other party doesn’t have money or assets and you don’t expect them to ever have money, or if they have gone out of business, it may not be worth your time or money to file suit.

Can I Have a Jury Trial?

When filing suit, you must decide if you want a jury to hear your case or the justice of the peace.  Either party can request a jury trial as long as it makes the request not later than one day before the date of the hearing and it pays the jury fee.[9] Like cases in the justice court, the jury consists of six individuals.[10] My experience in a small claims jury trial is that the Justice will permit both sides to conduct voir dire—that is, the parties can question the panel of jurors about their backgrounds and experiences to determine their biases.  However, this process is dependent on the judge and you should check with the clerk when you are filing suit.  Each side is permitted to challenge any juror for cause (i.e., the potential juror tells you she is unable to be treat both sides fairly because of some pre-existing bias) and is permitted to make three peremptory challenges (remove a potential juror for any reason, typically strategic, so long as it is not based on a race, gender, religion, or other protected category).[11] The judge shall then call the first six names remaining on the list of potential jurors to serve as the jury.[12]

Deciding whether to request a jury is a difficult decision in any case and court.  My personal opinion is that in most breach of contract cases or suits on a debt in small claims court are best heard by a judge.  It will often take less time to present your case to just a judge and you don’t run the risk of placing a case in the hands of a six individuals who have been called away from school, work, or their families and may have other have  things on their mind.  That being said, jurors prove themselves time and time again to be sharp and sincerely interested in doing their job and delivering justice.  Ultimately, you will need to decide this, either by discussing this with your lawyer, or considering the benefits and burdens of trying your case in front of a jury.

Do I Need an Attorney?  Who Can File Suit in Small Claims Court?

The suing party is not required to retain an attorney even if they are a corporation or other business entity, though it is permitted.[13] Certainly having an attorney represent you makes navigating the court system simpler and you obtain the benefit of their experience and training in how to present your case.  Although attorney’s fees can be expensive, in certain types of cases your judgment can include an amount for your reasonable and necessary attorney’s fees.  You should talk to an attorney and discuss what their fees will be, their hourly rate, and how much time they expect trying such a matter will cost.  Of course, if the Defendant hires an attorney, having your own attorney can help prevent you from having to try a case against someone who is trained and has significantly more experience.

Collection agents, persons who have received the claim by assignment, or money lenders cannot file suit in small claims court.[14] This does not mean you cannot sue in small claims if you have loaned someone money.  It only means that if your business is of the type that lends money, e.g., banks, payday loan providers, etc., you must seek relief in the other courts.

What to Expect on the Hearing Day?

After the citation is issued and the Defendant is served, the Court will send you a notice of the hearing date.  If the Defendant does not appear at the hearing, the judge will enter a default judgment for the amount of damages you prove.[15] If the Defendant has a good reason for not appearing, and she files a motion with the court within ten days after the default judgment is signed, the judge can set aside the default judgment and set a new date for the hearing.[16] Similarly, if you don’t appear, the judge can dismiss the suit.[17] The court will not set aside the dismissal unless you file a written motion within ten days of dismissal stating a good reason for not attending the hearing.

If the Defendant does show up, then the Judge will proceed with hearing the case.[18] Note that unlike cases in county or district court, the Defendant is not required to file a written answer to your lawsuit.[19] The justice of the peace serves as the judge in small claims courts.[20] The judge’s responsibility is to develop the facts of the case.[21] The hearing itself is informal and the parties can present testimony and other evidence.[22] This should consist of any documents you have that prove your claim and any witnesses or persons with knowledge of the events surrounding your claim.  While the normal rules of evidence do not necessarily apply, the judge has the discretion to determine the reliability and admissibility of the evidence.  The judge can question a witness or party and also summon a party as a witness.[23] While limited discovery is permitted (requesting documents and asking interrogatories to the other party) prior to the hearing, you must request the judge to permit it.[24] Discovery is beyond the scope of my discussion here.

Often times the judge will permit you to make an opening statement, to either her or the jury.  The Defendant will then have an opportunity to make its opening statement.  Afterwards, the Plaintiff will present its case (put on testimony or evidence).  The Defendant can then put on its defenses or counterclaims.  The Plaintiff is usually permitted to rebut the Defendant’s defenses or put on defenses against the Defendant’s counterclaims.  The parties may then be permitted to make closing statements.  At that time, if there is a jury, the judge will instruct the jury to determine who is liable and for how much.  She is not permitted to “charge” the jury, as done in county or district court cases.  If the case is tried by the justice, the judge shall render the judgment.[25] If the judgment is against the Defendant, the Defendant is required to pay the judgment immediately.[26] If the defendant cannot make an immediate payment, the judgment can be enforced through execution, by attachment, or other means permitted by the justice court.[27]

Are There Appeals?

If the amount you were suing for is more than $250.00, then either you or the Defendant has the right to appeal to the county court or county court at law.[28] Unlike an appeal from the higher courts—where the appeal court reviews the lower court’s proceedings and decisions for error—a small claims appeal is a completely new trial before the county court or county court at law.[29] Though the details of an appeal to the county court or county court at law are beyond the scope of my discussion here, the appealing party has ten days from the date the judgment is signed to file a bond with the justice.[30] Thus, if they fail to do this, or are not otherwise permitted a waiver of the bond requirement, your judgment is final and can be enforced.

Conclusion

The small claims courts provide an efficient and economic way to recover amounts of money less than $10,000.00.  While you are not required to hire an attorney to represent you, it will often make the entire process much simpler.  If you have any other questions, please feel free to contact us.

-Brian Deitch

Disclaimer:  The preceding post is not intended to constitute specific legal advice or create an attorney-client relationship.  This is for informational purposes only.  If you have specific legal questions regarding a specific case or matter, then you should contact an attorney.


[1] Tex. Gov’t Code Ann. § 28.001  (West 2011)

[2] Id. at § 28.003(a)

[3] See generally, Tex. Gov’t Code Ann. § 28.011

[4] Id. at § 28.012(a)

[5] Id. at § 28.005

[6] Id. at § 28.012(b)

[7] Id.

[8] Id. at § 28.013 (a)-(b)

[9] Id. at. § 28.035(a)

[10] Id. at § 28.035(b) & Tex. R. Civ. P. 551

[11] See Tex. R. Civ. P. 549-50.

[12] Id. at 551.

[13] Tex. Gov’t Code Ann. § 28.003(e) (Corporations are required to be represented by an attorney in non-small claims court cases)

14 Id. at § 28.003(b)

[15] Id. at § 28.031(a)

[16] Id.

[17] Id. at § 28.031(b)

[18] Id. at § 28.033(a)

[19] Id. at § 28.033(b)

[20] Id. at § 28.002

[21] Id. at § 28.034

[22] Id. at § 28.033(c)-(d)

[23] Id. at § 28.034

[24] Id. at § 28.033(e)

[25] Id. at § 28.051(a)

[26] Id. at § 28.051(b)

[27] Id. at § 28.054 & Tex. R. Civ. P. 561.

[28] Tex. Gov’t Code Ann. § 28.052(a)

[29] Id. at § 28.053(b)

[30] Tex. R. Civ. P. 571.

Happy Hannukah, Merry Christmas, and Happy New Year

December 23rd, 2011

On behalf of the Law Offices of Michael Deitch & Associates, I want to wish you all a Happy Hannukah, Merry Christmas, and Happy New Year.  This time of year is a time of family, reflection, and appreciation.  We truly appreciate the opportunity to represent each of our clients and are thankful for the trust they place in us.

I am  grateful for the personal relationships I have built throughout the past year, both with the clients I have represented and the people I have had the opportunity to work with and interact.  This week I had the opportunity to try a case in small claims court and successfully obtain a judgment for my client.  I am currently working on a blog post about small claims court–when and what cases may be filed there; the rules; and the advantages and disadvantages of using  attorney in such a situation.  Helping people and their businesses navigate the legal system and protect their rights is something I really enjoy.

I hope that you all have a wonderful holiday season and a prosperous and fulfilling new year.

-Brian Deitch

Welcome to the Deitch Law Blog!

December 16th, 2011

Welcome to the Deitch Law Blog! With this blog, we hope to offer thoughtful legal insight, a picture into the things that are important to the attorneys and members of this firm, and an informal discussion on matters affecting our clients, friends, family, and our community.

Given the abundance of legal blogs, and blogs in general, we don’t want this to be just another means of self-promotion or advertising medium.  Rather, we would like this to provide those who don’t know us with a sense of who we are, and those who do, a source of information or even entertainment.  Of course, that’s not to say that everything I or Mike has to say will meet that criteria, but I hope that you will find our posts to be genuine and honest.  After spending time contemplating the topics and ideas to include in our post, we concluded that as a small business and consumer, we often face many of the issues our clients, both businesses and individuals, come across every day.

I thought I’d start off first by giving an introduction of myself.  I have grown up around the law my entire life.  Mike, my father, has set a strong example of what it  means to be a lawyer and how to effectively advocate for your client.  He has also taught me the importance of sticking to the values and morals you believe in, upholding the ethics you have agreed to abide by, and becoming a leader in the local community.

I was born in Austin and had the privilege of attending the University of Texas at Austin.  I am a die-hard Longhorn (but still allow a few Aggie friends) and closely watch the Texas football, basketball, and baseball teams.  I am an avid runner and completed my first half marathon last February, and hope to complete my first full marathon this coming February.

I truly enjoy practicing law.  I love the new challenges it constantly presents, the ability to help individuals and their businesses with problems, and seeing the results obtained. I never forget how privileged I feel working in Austin and will always work to support this community.

-Brian Deitch