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SMALL CLAIMS COURT SYSTEM IN WISCONSIN

If the amount claimed in your case is more than $5,000, your case will be in regular Circuit Court. If the amount claimed in your case is $5,000 or less, your case will be in Small Claims Court. The Small Claims Court system is intended to be less formal than regular Circuit Court. This is in order to allow persons to have their case heard by a court without having to hire a lawyer. Yet, if the suit is for a relatively large amount of money or the issues are complex, having an attorney might be a wise investment. The Lawyer Referral and Information Service [(800) 362-9082 or (608) 257-4666 (if calling from Dane County)] can refer you to an attorney who handles cases such as yours.

NOTE: Eviction and replevin (return of property) cases are not covered in this handout.

Starting a Small Claims Case

A Small Claims case is started by filling out a form provided by the clerk of court called a Summons and Complaint. This form is available at the Small Claims clerk's office in the local courthouse. There is a filing fee and a service fee. The Small Claims clerk can provide a waiver of fees form to financially-eligible persons. However, the person must specifically ask for it. If the person is eligible, a judge can order that the person be permitted to file the papers and ask for service without paying the fee.

The “Summons” is the legal document that informs the person being sued (the "defendant") of the date and time to appear at court and answer the Complaint. The “Complaint” sets forth the facts that support the claims for money made by the person filing the case (the “plaintiff”). The Complaint is either combined with or attached to the Summons. Although you can provide your own Complaint, the form provided by the Small Claims Court is usually sufficient. On the form, write down a brief statement of what your claim is and why you are owed the money. For example, if the plaintiff loaned the defendant $200, and the money was not paid on the date agreed, then state that on the form and ask for the $200 plus court costs.

The plaintiff can choose to have the Summons and Complaint served upon the defendant by the sheriff or a private process server. Some counties, such as Dane, permit service by mail, which allows the court to serve the Summons and Complaint by mail for a small fee for each defendant.

Return (or Joinder) Date

When you see the Small Claims clerk to start the action, the clerk will set a date and time for the return or joinder date. That is the date and time by which the defendants are (depending upon the county courthouse rules) either required to be present or required to file a written “Answer.” This date and time appears on the Summons. If the defendant fails to show up or fails to submit a timely written Answer at that date, the clerk will enter a default judgment, and the plaintiff is granted what he or she asked for in the Complaint. The purpose of the return date is to permit the defendant the opportunity to dispute the plaintiff’s claims. In the written denial or "Answer," the defendant lists in writing the reasons why the plaintiff should be denied the claim. The Small Claims clerk usually has an “Answer” form with which the defendant can be provided.

Trials

If the defendant has properly disputed the plaintiff’s claim, the case will be set for hearing, ordinarily before a court commissioner. When the trial is before a court commissioner, the losing party can appeal the court commissioner’s decision to a judge for a new trial (trial de novo), if the appeal is filed properly within the required time after the decision.

In Small Claims trials before the court, the formal rules of evidence do not apply, except as to the matter of privileges under Wisconsin Statutes Chapter 905. You can use letters and affidavits. However, it is best to bring witnesses if you can. Remember that although the court is likely to be more understanding of people representing themselves in regard to how they question witnesses, the other side can object to certain kinds of questions, and objections may be upheld.

Parties who are not prepared on their cases may experience irritation and impatience by the court. The best way to protect against this is to be as prepared as possible. Among other things, this means that you should review with each witness the questions you intend to ask them so that they are not surprised by your questions. This preparation helps you know in advance what your witnesses are going to answer so that you are not later surprised by a different answer or by a witness' sudden loss of memory. Make sure at the end of your case that each paper that you questioned a witness about or wish for the court to see is officially put into evidence. These are marked by the court as exhibits. Ask the court to admit the exhibits into evidence.

After both parties have questioned their witnesses, the court may ask the parties for a final statement on behalf of their cases. The court may issue a decision that day or at a later date.

Jury Trial

A jury trial can only be obtained if it is requested in writing and the jury fee is paid within a certain amount of time after the return or joinder date. (In eviction actions, the request and fee must be paid on or before the return date.) The jury will be six members, unless a twelve-person jury is requested. There are fees for a jury and for each juror. In most cases, except for persons who have had a lot of experience in the court system, representing yourself in a trial by jury is not advisable. The procedures in a jury trial are more complex, including the use of regular circuit court evidentiary rules, and require a greater knowledge of the law and legal procedure.

Other Claims

In the same action, the defendant can sue the plaintiff. This is called a “Counterclaim.” The defendant can also sue other people who owe money in the case, which is called a “Crossclaim.” For example, if a landlord sues a past tenant for back rent, the tenant may Counterclaim against the landlord for the security deposit or other damages. The tenant may also Crossclaim against another person, like a roommate, for past rent or other money they also owed in the case. No filing fee is required for filing a Counterclaim, unless the damage claim exceeds the $5,000 limit. There is a filing fee for a Crossclaim and a cost for service on that new party.

The above is intended to provide general information only and is not a substitute for thorough and specific advice on an individual case. Depending on the complexity of your legal problem, you may need to consult an attorney for advice or representation.

This was prepared by the staff of Legal Action of Wisconsin, Inc. on behalf of low-income clients and was funded by the Legal Services Corporation, Washington, D.C., 20005. Any opinions contained herein are those of the authors and should not be construed as those of the Legal Services Corporation.

Legal Action of Wisconsin, Inc. does not discriminate on the basis of disability in the provision of services or in employment. If you need printed material interpreted or in a different form, or if you need assistance in using our services, please inform us. Deaf, hearing-impaired, or speech-impaired callers may reach us through the Wisconsin Telecommunication Relay System (711 or 1-800-947-3529).

©August 2006 Legal Action of Wisconsin, Inc.


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