Using Discovery in Small Claims

[drkilra]

Hello, I loaned a girl some money that I work with, there is no written contract in place, only oral. I've sent a certified demand letter requesting the money and also put a clause in the demand that if anything was incorrect in the correspondence that she needed to respond otherwise I'd assume there is no error. She ignored the letter.

Although the burden of proof is on me and all I have for proof is her tacit acceptance of my demand letter; I’m wondering if I filed a Request For Admissions into the small claims case, if that would serve as the proof I need? Is discovery such as this permissible in small claims and would anyone recommend it as a substitute for proof?

Clark County, Nevada

 

[seniorjudge]

Go read all the information on small claims courts on your state bar's website.

Post what you find so we can discuss this.

 

[dcatz]

Is discovery such as this permissible in small claims and would anyone recommend it as a substitute for proof?

The purpose of discovery is to develop evidence. The by-product may have more or less probative value than some other evidence, but it is “proof”. It’s a good thing and a good idea. Whether it’s available to you is the issue. It’s not.

Your Small Claims actions are governed by your Justice Court Rules of Civil Procedure. You can read them here:
http://www.leg.state.nv.us/COURTRULES/JCRCP.html

Note that Rule 2 distinguishes between civil actions and small claims actions. Rules 3 through 87 pertain to civil actions and include the discovery rules. Rules 88 through 100 pertain to small claims and don’t provide for discovery. Precluding discovery in Small Claims is the majority position. It would be likely to make an informal, expedited proceeding protracted and cumbersome.

Rule 1 allows the court to make special orders in the interest of justice, but you’re swimming against the current to try to get the court to incorporate formal discovery for the reason given.

 

[Dandy Don]

Did you pay her in cash or is there possibly a cancelled check that could be used as evidence?
What reason did she give you for wanting the loan--what was she intending to do with the money?

 

[tranquility]

Although the burden of proof is on me and all I have for proof is her tacit acceptance of my demand letter;

She has no duty to respond to the letter. There is not "tacit" acceptance.

 

[drkilra]

She has no duty to respond to the letter. There is not "tacit" acceptance.

I disagree with that based on these merits

see Engelhardt v Gravens

Estoppel by acquiescence

The doctrine of estoppel by acquiescence may prevail when Party A makes legal notice to Party B of Party A's assertion of a fact or legal principle or claim, and Party B fails to refute, reply to, or to defend (within "a reasonable period of time") against said claim. In this circumstance, Party B is said to have acquiesced to the claim or position taken by Party A, and by acquiescence, generally is considered to have lost the legal right to make a counterclaim.

 

[drkilra]

dcats, thanks for your response. I like your reason and explaination. I'm thinking I may have more a chance if I file a standard civil action instead of small claims that way I can open those discovery 'doors'. I would still have to get a "leave of court" and I'm wondering how hard that would be considering I'm a Pro Se litigant and Rule 25A (a) et seq.
What do you think about this?

Did you pay her in cash or is there possibly a cancelled check that could be used as evidence?
What reason did she give you for wanting the loan--what was she intending to do with the money?

I paid her in cash, her reason was that so she could pay her car payment. There wasnt any witnesses, or receipts. Sad, i know..

 

[Zigner]

So, you think that mailing a letter saying "You owe me $5,000" that is ignored will result in you having a legal claim to $5,000 from that person?


Bwahahahahahhahaha



And, what do you hope to get by "Discovery"?


Look, you have a simple case of "I loaned her money and she didn't pay me back". She has a simple response of "No, you didn't loan me any money."

 

[tranquility]

I think you're reading the internet too much. You can't just read summaries, you have to read the cases themselves and understand all the concepts. There must first be a duty to respond for some reason. If I send out a bazillion e-mails stating the receipient owes me a thousand dollars, can I sue the ones who don't respond?

Or, say the credit collector sends me a collection notice. I send a letter back saying I don't owe anything. They respond, yes I do. I reply, no I don't and they don't reply. Have I won my case?

(By the by, the case you quote, but don't cite is a 1926 one from a different state. Do you have a cite which is controlling? If not, don't waste the court's time with legal argument. Just tell you facts and let the court decide.)

 

[drkilra]

Well if I thought that I had a legal claim based off a letter, I wouldn’t be asking about using discovery here. It’s only evidence that she is non responsive and of bad character in which I hope would help the judge make an informed decision.

I'm going to stick to the topic, so I'm hoping you will too.

I think you're reading the internet too much. You can't just read summaries, you have to read the cases themselves and understand all the concepts. There must first be a duty to respond for some reason. If I send out a bazillion e-mails stating the receipient owes me a thousand dollars, can I sue the ones who don't respond?

Or, say the credit collector sends me a collection notice. I send a letter back saying I don't owe anything. They respond, yes I do. I reply, no I don't and they don't reply. Have I won my case?

(By the by, the case you quote, but don't cite is a 1926 one from a different state. Do you have a cite which is controlling? If not, don't waste the court's time with legal argument. Just tell you facts and let the court decide.)

 

[seniorjudge]

...
Well if I thought that I had a legal claim based off a letter, I wouldn’t be asking about using discovery here. It’s only evidence that she is non responsive and of bad character in which I hope would help the judge make an informed decision.
...

It doesn't matter if you are the Pope and she is Satan.

The ONLY question (and here I am echoing two [ed: 3] other posters' info) is whether she owes you money.

Period.

End of story.

Even if.

 

[drkilra]

I understand all this, that’s why I’m trying to find alternative ways. Such as discovery, as the topic reads.

I'm not a big fan of forums due to people’s unconstructive attitudes

It doesn't matter if you are the Pope and she is Satan.

The ONLY question (and here I am echoing two other posters' info) is whether she owes you money.

Period.

End of story.

Even if.

 

[seniorjudge]

I understand all this, that’s why I’m trying to find alternative ways. Such as discovery, as the topic reads.

I'm not a big fan of forums due to people’s unconstructive attitudes

Then file in regular court (as you also have been told).

 

[drkilra]

This is something I made up my mind about already & posted, what I’m now trying to obtain is people’s experiences and opinions on getting a “leave of court” being a pro se litigant. Otherwise I beleive this topic was answered by ‘dcats’.

Then file in regular court (as you also have been told).

 

[seniorjudge]

This is something I made up my mind about already & posted, what I’m now trying to obtain is people’s experiences and opinions on getting a “leave of court” being a pro se litigant. Otherwise I beleive this topic was answered by ‘dcats’.

"Leave of court" to do what?

You are not making sense.