QuestionI am having trouble contacting the small claims court clerk here in Jefferson County, Colorado, via phone - she's always "in court". I have read some of your responses that deal primarily with insurance claims, and you appear to be an expert in the field of small claims courts, also. My question is procedural. In filing a Notice, Claim and Summons to Appear for Trial, I would like to use my name and the name of my spouse as plaintiffs because her name appears on some of the receipts/invoices. She has a number of medical issues that may prohibit her from actually appearing in court. Must all plaintiffs actually make an appearance in court? Just for background, we would be suing a local animal shelter for reimbursement of vet fees for the treatment of ringworm introduced into our household by a kitten we obtained from them. The shelter initially volunteered to pay for treatments (>$2000), then decided not to. After 5 months, the ringworm is now under control.
AnswerHi Ted,
We just arrived last night for our two week vacation—so I was unable to access your question while en route. I hope this brief delay did not cause you or your spouse and inconvenience.
I have answers for the two issues you raised: (1) the disappearing clerk; and (2) must all plaintiffs appear in court. But those answers are simple. What is necessary for me to get into is a bit more complex, but I am going to do the work to give you some ideas about this issue: what do you do if your wife’s testimony is necessary, or if the defendant were to subpoena her?
A second issue that you did not ask for is how to prove your claim, and whether or not there is a solid defense available to the shelter. I will address this at the end of my answer.
First and foremost, I extend best wishes to you and your wife in hopes that her medical situation might stabilize toward the improving end of the health spectrum. Let’s see her getting better and restored to health.
And because of your situation, I will give you well over one hour of my time. I do NOT want you to worry at all about how to go about this claim, so I am going to go well beyond what you could ever expect in the scope of topics and depth of my answer and the scope of topics I will cover for you. OK? Here we go, then, Ted!
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As for your questions, let’s take the more important of the two first. It is NOT necessary for a plaintiff to actually appear in court. But, having said that, it might be necessary for the testimony of your wife to be used in court. That is the only complicating factor here.
There are a couple of choices. You can proceed on your own, without naming your wife as plaintiff. In your pleading you would say that:
• “At all times relevant hereto, Joan Davis and Ted Davis have formed a marital community under the laws of the State of Colorado.
• “All actions of and by Joan Davis, spouse of Ted Davis, were done for and on the behalf of their marital community.”
In your prayer for relief, you will put something like this:
• “For the sum of $2,000 plus court costs and statutory award to prevailing party, to be paid to plaintiff and the marital community of Joan Davis and Ted Davis, and for such other relief as this Court deems just and equitable.”
That gets you by the issue of her name not appearing as plaintiff.
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But I see no disadvantage in naming her as a plaintiff. So go ahead and do that if you like since simply putting her name on the pleading will NOT require her to appear in court. And you may want to include such language as I gave you above even if you do name her in the caption. Oh—except in that prayer for relief, if you name your spouse, then just make it “plaintiffs”, like this:
• “For the sum of $2,000 plus court costs and statutory award to prevailing party, to be paid to plaintiffs, and for such other relief as this Court deems just and equitable.”
I have no idea whether or not your state has a statutory award to the prevailing party, but most states do, and what does it hurt to put it in there? It might spur the shelter to settle and pay up rather than risk paying out a larger sum!
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Now, let’s address the issue of her testimony. I do not know the facts here, but if your wife has testimonial knowledge that you do not have, then you will want to find a way to preserve her testimony and to use it in court. I am going to give you my private email address—or at least a way to write to me via the staff at our website: auto accident insurance claim website www.SettlementCentral.Com insurance injury awards. That instruction will be at the end of this answer.
When would your spouse have testimonial knowledge that you do not have? If she was told something or saw something that you were not privy to, then you might want her testimony. What if she were the one who interacted with the shelter and she was the one who received assurances that the kitten had been treated, or that all animals adopted out are in good condition?
Anything like that might be put before the judge by three means. Easiest is for her to testify in court. But we are not going to make her do that. Next would be to provide an affidavit (or certified statement) of her testimony and attach it as an exhibit to your notice and complaint. This is a backdoor way of getting her testimony before the judge, BUT it is NOT “in evidence”—meaning the judge cannot base his decision on her testimony.
To do that, you will need to do one of two things. The easiest way is to write up her testimony in the form of an affidavit (or certified statement), send it to the other side and explain your wife’s situation and ask them to agree that these facts can be entered into evidence and get them to SIGN a brief statement to that effect. If they hesitate, then tell them something like this:
• “I will be forced to make a motion to the court for an order allowing us to perpetuate my spouse’s testimony by deposition to be taken at home. And I have it on good authority from an attorney that the court WILL grant that order. The attorney also told me that if we are the prevailing party the entire cost of taking that deposition and typing up the testimony WILL BE ASSESSED against the shelter.”
So, I think that unless what your wife has to say is highly disputed, it is likely that the shelter will agree to allow her testimony to come before the court. You must get them to sign in writing, and something like this will do:
• “The parties agree that the affidavit (or certified statement) of Joan Davis, attached hereto and marked Exhibit 1 and incorporated herein by reference, may, at the sole option of plaintiffs, be admitted into evidence as the substantive testimony of Joan Davis, without any cross examination by defendant shelter.”
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OK, Ted, that is about all you need on your spouse’s testimony. Oh—what about affidavit versus certified statement? The latter is a lot easier since an affidavit requires a notary to swear in the witness and to witness the signature whereas the certified statement is just the first part of the declarant’s testimony. To give you an idea of how that works, here is how one might start out:
• “I, Joan L. Davis, do hereby declare under penalty of perjury of the laws of the State of Colorado that all of the following is true and correct:”
If it turns out that you need either of these formats, let me know via email and I will give you an example, although I have no idea whether or not certified statements are used in your state—but everyone else does, so . . .
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NOW—for the other issue you raised: getting a return call back from the court clerk. If he or she does not return your calls, then you should do something about that. You never want to piss off the court staff, but on the other hand, they DO have an obligation to return calls.
It is no problem that he or she is in court, that is just a staffing issue. But it IS the court’s duty to answer calls made with a message requesting contact.
I would check to see if there is a local court administrator. I did not see one on their website, but they might have one—depending upon the size of that court. If they do, then make your request (NOT complaint) to the court administrator.
If they do not have one, then go to the Office of the State Court Administrator—you will see their names and numbers on the URL linked below. They think they are above such small stuff, and all that, BUT you will remind them that the very first part of their duty is to “provide technical support to trial courts.” They exist to provide “administrative support and services to the trial and appellate courts to assist them in providing the citizens of Colorado meaningful, speedy and economical forums to resolve disputes.”
http://www.courts.state.co.us/Administration/Index.cfm
Style of your “request” regarding the court clerk who will not return your calls—be it made to the local court administrator or to the local state office”
• “I hereby respectfully request assistance in obtaining contact with the clerk of the small claims court at (location). I have called for the clerk three times, but he is always in court. I do understand that duty, but I still would like to speak with the clerk, and to date not one of my requests for a return phone call has been honored. Can you please provide me with any suggestions on how I should proceed?”
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Topic not asked nor addressed herein: “Do I have a good case and how do I prove it?”
I really cannot say either way. Maybe the shelter has some kind of contract by which they have tried to immunize themselves from liability for such problems? Have you checked to see what was signed when you got the kitten?
WARNING: do NOT be swayed to abandon your claim if there is such a hold harmless statement that you had to sign. There are hundreds of examples whereby the courts have invalidated such documents. You would argue that a party cannot immunize itself from damage claims based upon its own negligence by requiring ALL adoptions to be on the basis that the shelter will be held harmless. You can do some online research, but that is the basic argument to make. The magic phrase is that these are “adhesion contracts”—and the magic argument is that they preclude any negotiation if one wants to adopt an animal. That does not make them unenforceable, but you might have a very good argument to void any such defense the shelter might throw up at you.
http://www.law.cornell.edu/wex/adhesion_contract_contract_of_adhesion
http://legal-dictionary.thefreedictionary.com/adhesion+contract
http://en.wikipedia.org/wiki/Adhesion_contract
The element you need to show rests upon the duty of the shelter to provide a clean animal, and the REASONABLE expectation of those who adopt animals that they will be clean. Any words of assurance uttered by the shelter support your claim, EVEN if their adoption contract has a clause that says this is the entire agreement and no parol evidence will be heard. What they said can be an inducement to adopt, and argued into evidence notwithstanding any contract clause to the contrary.
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You DO have permission to write to me at our insurance adjuster tactics website www.SettlementCentral.Com sample claim letters. Our website is a good way to make contact, but as you might guess, we do get many e-mails there, and people coming from this website trying to get me to answer questions when I am “on vacation” [e.g. doing my regular job each day—hence not available to answer at allexperts.com.
Our staff does not answer questions b/c of the malpractice risk and b/c we just do not have the time to volunteer for everybody. So here is how to initiate contact with me. Go to our car wreck injuries website www.SettlementCentral.Com personal injury claims, and click on the “contact us” button in the top right side of the home page. A dialogue box will open.
In there, simply type in that you are a questioner at allexperts.com who has been given permission by Dr. Settlement to contact him directly. That is all you have to do—oh, sign it with Ted, so I will recognize you.
That way I can send you anything you need that I mentioned above.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair trial, and you will DO JUST FINE, Ted.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
