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When Negotiating Doesn’t Work

lawsuitAs I wrote in a recent column, it’s best to try resolving a dispute through negotiation. This approach can save time, stress, and money. What happens, though, when negotiating doesn’t work? Sometimes it’s necessary to follow through with a lawsuit.

This isn’t something to do lightly. Before you haul your opponent off to court, it’s a good idea to think the matter through carefully and establish your bottom line. What might you gain? What might it cost? What is the potential return—in payment of damages or money owed you, vindication of your position, or whatever satisfaction you might be seeking? How much time, money, and emotional energy are you willing to invest in this matter?

You probably will need to consult an attorney before you can answer those questions. Obviously, the attorney can’t guarantee you’ll win your case or give you a precise cost. Still, a consultation should give you a realistic assessment of the validity of your position and an estimate of the cost to pursue legal action. The attorney may also be able to suggest intermediate steps short of suing someone. The magic words, “a letter from my lawyer” can be a powerful tool to help persuade someone to settle an agreement.

If a lawsuit does seem necessary, consider using Small Claims Court. Many people assume this option only covers disputes involving a few hundred dollars. In fact, a “small claim” can be considerably more than that. In South Dakota, the current maximum amount is $8,000.

Cases handled by Small Claims Court commonly include suits for collection of unpaid bills or returned checks, small claims courtdamages resulting from car accidents, landlord/tenant disputes over payment of rent or return of security deposits, and damage to personal property.

To find out more about the requirements in your county, look under “Small Claims” in the government section of your phone book. The court office, which may be a division of the Clerk of Courts office at your county courthouse, will provide forms and instructions. As the Plaintiff, you are responsible for writing a statement describing your loss and providing copies of any supporting documentation such as receipts, bills, leases, or repair estimates.

When you file your claim, you pay a small filing fee which varies according to the amount you are seeking. In South Dakota, the minimum fee is currently $17.03 and the maximum is $35.03. This amount is added to your claim, so the Defendant will be required to pay it if you prevail.

The Defendant is served notice of the claim by certified mail, or, if necessary, in person by a process server. There may be additional fees for this. If the Defendant doesn’t respond by the deadline, a judgment is entered in favor of the Plaintiff. If the Defendant does respond, a hearing date is set. At this time both parties present their cases in front of a magistrate judge. You can be represented by an attorney if you wish. Either party can call witnesses, who can be subpoenaed if necessary.

If a judgment is entered in your favor, that isn’t necessarily the end of the case. You will still need to take steps to collect any amount due. These may include asking the Sheriff’s office to execute the judgment, asking that the Defendant’s wages be garnished, or asking to have the Defendant’s driver’s license suspended.

Small Claims Court is “do it yourself” litigating. You need to do your own legwork, provide the supporting evidence, and follow through as necessary. If you are willing to do those things, Small Claims can be an effective and inexpensive way to resolve a dispute.

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