Legal question/Lawyer...

[carmen fovozzo]

In small claims court if a counter claim is made by the defendants lawyer should the plaintiff be notified of it before the court date ?

[sodbuster95]

Standard lawyer answer: It depends.

Generally, a counterclaim is filed in conjunction with the answer but that is not always the case. Regardless of when it's filed, however, the plaintiff gets a period to answer the counterclaim in the same way that the defendant has a period to answer the initial claim. If that period has not elapsed by the court date (and presuming that the plaintiff has not filed an answer), then the counterclaim won't be heard at that court date. A counterclaim must be served upon the plaintiff and filed with the court just as the answer was. If the defendant failed to properly serve or file the counterclaim, then it cannot be heard by the court.

One of the purposes of small claims court is to avoid protracted arguments about procedure so as to resolve the matter quickly and efficiently. However, that doesn't mean procedure is ignored.

[carmen fovozzo]

Court date..4-29-16...heard counter claim... First time hearing about it...4-30-16 received counter claim in mail..post marked the 27th.

[sodbuster95]

If the court heard the counterclaim, but the plaintiff was never served, then I'd file objections with the court if the outcome is not favorable. There is generally only a very limited time during which objections can be filed, so the plaintiff will want to pay close attention.

Of course, if the ruling is in plaintiff's favor...then the issue is moot.

[carmen fovozzo]

I see...now does the plaintiff wait to hear in his favor before he objects to the counter claim ? Or take a chance and file the objection first ? And maybe upset the court...

[sodbuster95]

That's a strategic question which cannot be readily answered given the limited information available. I would be tempted to wait and see what the magistrate does, but it depends on the circumstances of the case.

[carmen fovozzo]

Thanks for the info..You have been very helpful...

[carmen fovozzo]

One last question please...is the final court finding done at another hearing or by mail ?

[sodbuster95]

Since this is small claims, the magistrate issues a recommendation that is forwarded to the parties and the court. If neither party objects, the court adopts the recommendation and enters it as an order. If either party objects, the next steps will depend on the court. The judge can hold a hearing on the matter or, more likely, have the magistrate hold another hearing or order both parties to submit written pleadings.

Small claims courts have been described as the "wild west" of the judicial system and, as an attorney, I quite frankly stay out of them. The few times I've had a client in small claims, I've immediately filed for transfer to the regular docket.

As an update to my prior answers: Notwithstanding the Rules of Civil Procedure (which do apply here), I note that R.C. 1925.02(C) expressly requires that a party filing a counterclaim "shall file it with the small claims division and serve it on all other parties at least seven days prior to the date of the trial of the plaintiff's claim in the original action." As this is a jurisdictional requirement, should the magistrate rule against the plaintiff in this case, the objection to the judge would be on the basis that the court lacks jurisdiction due to improper service.

[carmen fovozzo]

Thanks again..have a nice weekend....

[JediSkipdogg]

Small claims courts have been described as the "wild west" of the judicial system and, as an attorney, I quite frankly stay out of them. The few times I've had a client in small claims, I've immediately filed for transfer to the regular docket.

Can you as an attorney even enter small claims? I know you can give advice in the hallway but I thought one of the purposes behind small claims was to eliminate the attorney aspect in the courtroom.

[carmen fovozzo]

Lawyers always were aloud in small claims. .to represent you.

[JediSkipdogg]

Lawyers always were aloud in small claims. .to represent you.

Maybe I'm thinking because it simply doesn't happen. If the case is small enough to be handled in small claims, any lawyer fees are going to most likely be larger than the max small claim reward, therefore it would be a loss no matter what.

[pirateguy191]

Lawyers always were aloud in small claims. .to represent you.

Is someone finally suing you because of your spelling?

[carmen fovozzo]

Nope.....someone wants something for nothing. ..we are talking a couple grand here..they have a lawyer and I'm playing one.