How Do You File Suit?

You have exhausted all reasonable steps to settle the dispute out of court. You have determined who you are going to sue and where to file suit. Now you should prepare everything you need to bring to your small claims lawsuit in justice court. You should collect all the information that will be needed to start your lawsuit before you go to the courthouse. Otherwise, you will waste time going back and forth to complete the process. Collect your records, including copies of contracts and agreements. You should also have the following information:

a) your complete name and address;

b) the complete name and address of each person or business your claim is against. Correct names and addresses are vital to your case because the court cannot grant a judgment against a defendant who is improperly named in the complaint. Therefore, you must find out before you go to court the name and address of the person or business your claim is against. If the business is a partnership, you should name both partners individually and the partnership by its correct legal name. If the business is a corporation, you should state its exact name. If the business is incorporated, visit the secretary of State's office, at http://www.sos.state.tx.us/,  to see if the business is listed. If it is, get the correct title of the business and the name and address of its registered agent. If the business is a sole proprietorship, you should find out both the name under which the business is operated and the name and address of the owner. You can find out this information by going to the Assumed Names Department at the County Clerk's office;

c) the amount you intend to claim in damages (this amount must be $10,000 or less); and

d) a concise statement of the basis for your claim, stated plainly and without technicalities, including the date the claim arose, and any other relevant date. You should write this statement in advance.

Once you are prepared, call the justice of the peace court which you have determined to be the correct one. Make certain that you will be going to the right court and that you have all the necessary information. Find out how much money you will need to bring with you to pay the fees necessary to start your lawsuit. The exact procedure followed in each justice court may be slightly different. The fees also are changed from time to time. A telephone call may be well worth the effort and most counties have a website providing this information.

If you cannot afford the filing fees, you must file a sworn statement of inability to pay the fees. You can contact the court and request a "Pauper's Affidavit" which you will need to have notarized and filed at the same time you file your petition. The person you are suing may contest your inability to pay and a hearing will be held. The Judge will then determine if you truly are unable to afford the fees.

You should personally go to the court to file your suit. Ask to see the clerk in charge of civil filings. You must complete a Justice Court Civil Case information sheet. You will have to pay the clerk the necessary fees. If you want a jury trial you must request one and pay an additional fee. These fees generally must be paid in cash, money order, or company check. Most courts do not accept personal checks. All of these costs may be added to the amount you recover at trial, if you win. Tell the clerk the correct and complete address where the defendant can be found and the approximate time of day he or she is likely to be found at that location. This is important because the defendant must be served before the court can grant any relief.

Ask the clerk how the court sets the trial date. Procedures may vary in different courts. In some courts, the trial date may be set by court order, and you will be responsible for sending the defendant a letter giving him or her notice of the trial date. If your court follows this procedure, you should send the letter by certified mail, return receipt requested.

Call the clerk after two weeks to make sure that the defendant has been served and find out the exact date he was served. This date is important because in most courts it is used to calculate the trial date. No matter what procedure the court follows, ALWAYS VERIFY THE TRIAL DATE WITH THE CLERK. REMEMBER THIS DATE AND BE IN COURT AT THAT TIME. If the defendant was properly served and has not answered your suit, you will usually win by default simply because you were in court on the trial date.

Find out what your case number is. You will need this number, so you must write it down. If the defendant has not been served within 90 days, you should call the clerk and ask whether a new citation must be issued.

Remember, you cannot recover anything unless citation has been served on the person you are suing. The justice court cannot help you until the other party is served. After waiting two weeks, you may wish to start calling the sheriff or constable until they tell you that the citation has been served.

When dealing with the court, remember to always be polite. Do not get the clerk, the judge, his staff, the sheriff or the constable angry with you. Cooperation with these officials is a must. Your case is one of thousands of cases on file. These officials can only spend a limited amount of time on your case without neglecting other cases. Also, remember that if you do speak to the judge about procedural matters, do not try to take advantage of the conversation to impress or persuade the judge about the merits of your case. It is improper for the judge to hear one side of the case without the other side present.