Careers“Small Claims Recovery Increased to $6000 – Should Your Business Be Thinking Small?,” also appeared online in Crain’s Cleveland Business on April 3, 2017.
Late last year, Governor Kasich signed a law that doubled the maximum amount of money recoverable in small claims court, from $3,000 to $6,000. As with any new law, the increase in maximum recovery in small claims court has both positive and negative consequences on Ohio businesses.
On the plus side, one of the main purposes of this change was to permit businesses to recover debts, while avoiding the high cost and length of litigation often found in other courts. For example, in Cleveland Municipal Court, the filing fee for a complaint is $122, but a small claims complaint only costs $37 to file. Because there is typically no discovery, small claims cases tend to be resolved much more quickly. And, under Ohio law, a company can – subject to strict limits – be represented in small claims court by a non-lawyer. (Importantly, although a company may file and present its claim or defense, it cannot engage in cross-examination, argument, or other acts of advocacy without representation by an attorney. Think carefully before selecting this route.)
On the other hand, the new law also has the potential for negative effects. For example, businesses may see an uptick in cases being filed against them in small claims court. As there are no subject matter limitations in small claims court, these filings could include breach of contract and other business disputes, routine slip and falls, and others. Additionally, the monetary increase has the potential for an increase in meritless and frivolous filings. This is because potential plaintiffs now stand to recover twice as much as they could have previously.
Procedurally, the small claims process is fairly straightforward. First, a claim is filed. Typically, this is a single page form identifying the parties, stating the basis for the claim, and including the amount of money the plaintiff seeks to recover from the defendant. After the complaint is filed, the court will set the trial date, usually around 30 to 60 days after the complaint is filed. A party who is sued can counter-sue by filing a counterclaim at least seven days before the trial. Typically, there is no discovery. Witnesses can be compelled to appear by serving them with a subpoena.
On the date of the small claims trial, the parties appear, exchange any documents they want to present to the judge, and possibly discuss settlement. Absent a settlement, the presiding judge begins the trial and it is concluded in approximately 15 to 20 minutes.
In contrast, civil litigation in municipal or common pleas court is not as quick or simple. First, the complaint requires a written response from the defendant. Then, the court sets a status conference for the parties to meet, discuss the case, and set a trial date – which could be a year or more away. Next, written discovery is exchanged and depositions are taken. The legal fees and expenses resulting from this process can amount to an expenditure of time and money that is disproportionate to the value of the claim itself.
For example, before the law was changed, a business seeking to recover on an unpaid debt for $4,000 had to file in municipal court. Because a business cannot pursue a claim without legal representation, it had to make a decision whether it wanted to pursue the claim and pay an attorney or simply let it go. No longer does that business have to make such a determination due to the changes made by this law.
With the increase in the amount of recovery, now is a good opportunity for businesses to review their policies and procedures with respect to documenting losses. If an accident occurs, it is important to document what occurred, who are the witnesses, and take written statements and photographs. As time passes, employees come and go, memories fade and it becomes increasingly difficult to prosecute or mount a defense to a claim. For example, the time period to file a slip and fall case is two years and a breach of written contract is eight years. To that end, it is important to ensure that when the time does come to either present or defend a small claims lawsuit, that your business is in the best position to do so. In order to accomplish that, immediately contact your attorney and provide him/her with your claim or the small claims complaint and any supporting documents that you may have in your possession regarding the incident or business dispute.
Companies big and small can be dragged into small claims court, so do not believe that your company is immune from litigation. Many plaintiffs may consider small businesses as easy targets and try to focus their claims on those businesses. On the other hand, plaintiffs will just as likely target large businesses due to their erroneous belief that a small claims complaint will get lost in the day-to-day operations, no one will appear to defend the claim and an easy award of $6,000 can be obtained. Therefore, it is recommended that if a company is sued or wishes to pursue a small claims action, that it retains an attorney. Without an attorney and in the likely event that the opposing party appears, the company’s representative cannot question their claims or defenses. That will significantly hamper the company’s ability to prevail on its claim or defense.
With the increase in the amount of recovery to $6,000, the prospect of lengthy and expensive litigation becomes minimized. As such, companies should begin to consider and incorporate the strategies discussed into their business plans and start thinking small . . . small claims that is.
For additional information or legal guidance, contact David M. Kroh at (216) 619-7838 or dkroh@walterhav.com.