Legally Speaking

Many people are unaware that Wisconsin provides a venue for the resolution of minor legal disputes. Small claims court provides an informal way to resolve minor lawsuits and other legal problems.

Chapter 799 of the Wisconsin Statutes discusses the procedure in small claims court. Small claims court provides a venue for the following situations:

• Civil actions such as personal injuries, property damage, or contract disputes where the amount claimed is $5,000 or less.

• Eviction actions in which a landlord seeks to evict a tenant. The $5,000 limit does not apply to eviction actions in small claims court.

• Actions for the return of earnest money paid pursuant to an offer to purchase real estate.

• Claims to repossess property valued at $5,000 or less. This is called a replevin action.

• Actions to enforce a legal judgment in the amount of $5,000 or less. Under this situation, the judgment, which has already been obtained, can be enforced by seizing funds or property which the other person possesses.

How is a small claims action started?

If your legal dispute cannot be settled, the necessary forms can be obtained from the Clerk of Court at the county courthouse. The small claims summons and complaint is relatively self explanatory. Besides listing your name and address, you must make sure that you correctly list the defendant’s name and address. You must also indicate the type of lawsuit: money, eviction, or return of property.

Perhaps the most important part of the small claims summons and complaint is the “statement of dates and facts.” Briefly and concisely provide a statement of facts. This can be done in one or two paragraphs. It is helpful to attach relevant statements, such as contracts or invoices, to the small claims summons and complaint.

Are there costs to start an action in small claims court?

The current filing fee in Wisconsin for starting a small claims action is $85. There is also a charge for having the small claims summons and complaint served. If the defendant’s address is in the same county where the suit is filed, the summons and complaint may be served by mail for $2 per defendant. However, if the defendant’s address is outside the county which the suit is filed, the summons and complaint must be served in person. Personal service can be done by the Sheriff or private process servers.

If you have witnesses who will not testify voluntarily, you can require a witness to appear by issuing a subpoena. The subpoena must be served just like the small claims summons and complaint, with the same fees. In addition, you must pay each witness a fee of $16 per day and $.20 per mile for travel.

If the case goes to trial with a jury, the cost for a six person jury is an additional $36.

What is the procedure once the case is started?

A “return date” will be set as the first step. In some counties, both you and the defendant must appear in court at the scheduled day and time. However, some counties, such as Door County, require only a written response from the defendant rather than a personal appearance. If your county requires personal appearance, bring proof that the defendant was served and that he/she owes you the money or property claimed.

If the defendant does not show up or respond on the return date, the Judge may provide judgment in your favor. This is known as default judgment. If the defendant does appear or respond, he or she will be required to either admit or deny the accusations you made in your summons and complaint.

If the defendant denies all or part of the accusations, a trial will be scheduled. Both you and defendant may present evidence, including testimony by parties or witnesses. As the plaintiff, you must provide evidence that you are entitled to money, eviction, or return of property as a result of the defendant’s actions. You will not win if you are merely present at the trial and refuse to offer testimony or other evidence which supports your claims. One of the benefits of small claims court is that the rules of procedure and evidence are not strictly enforced. Therefore, you do not need to worry about presenting testimony and evidence like a skilled attorney.

If you win, you will be entitled to certain costs in addition to the amount claimed. For example, you will be entitled to recover your filing fee and service fee. In addition, you will be entitled to recover a small amount of your attorney fees if you hire an attorney. For example, if you obtain a judgment in the amount of $1,000 or more, as stated above you will only be entitled to recover $100 as attorney fees. If you have any questions about starting a small claims action, please call me at 920.743.6505.

If you lose the case or you do not obtain all of the money or property claimed, you may appeal the case to the Court of Appeals. There are costs associated with an appeal. Since an appeal is complicated, you should hire an attorney to represent your interest at an appeal.

Do you need a lawyer for a small claims case?

I have attempted to explain the procedure necessary to begin a small claims complaint. Generally, a lawyer is not needed to file a small claims action. However, the legal complexity of your case may dictate whether you need a lawyer. For example, your case may involve personal injury or the interpretation of a complex contract. These are legal areas where your interest may best be protected by a lawyer. In addition, you may want to consider hiring a lawyer if the defendant hires an attorney or the case is tried before a jury.

This column is based on general legal principles of Wisconsin law, is for informational purposes only, and is not intended to provide legal advice. Each legal matter must be judged on the merits of its unique circumstances. If you have a legal problem, consult an attorney.