Consider the following:
90-95% of cases filed in higher courts than Small Claims are resolved without going to trial.
85% of Small Claims cases go to judgment (15% of cases are about equally divided between settlement and failure to serve).
10-15% of Small Claims cases result in judgment for the defendant, as a rough average.
75-80% of judgments for all civil cases are uncollected.
While there are uncollected judgments for all civil cases, large and small, those figures mean that the majority of uncollected civil judgments arise in Small Claims. Plaintiff wins 85-90% of the cases that are heard and fails to collect 75-80% of the time. It is a very poor Rate of Return on the time and money invested.
The figures are the result of a combination of factors. I decided to open a thread concerning the first consideration after the decision to sue – designation of parties. If this prompts questions and a discussion, other factors can be considered – case presentation, asset location and collection or any other of interest. If the subject is not of interest or benefit, I’ll delete the post
It is said that getting judgment is easy and collecting is hard. Generally, this is true but, if the judgment is against a mis-named defendant, collecting may be impossible. In September, there were 5 posts concerning mis-designating defendants. The posts were from plaintiffs and defendants. It was 5 too many. What are some naming considerations that bear on collectibility?
(Disclaimer: all names are for illustrative purposes only and do not purport to represent known or prospective litigants.)
What is the defendant’s name?
1) For an individual:
(a) Have you used a nickname or contraction – e.g. “Bill” or “Billy” for “William”?
(b) Are you sure of the spelling – e.g. is the claim against “John”, when the defendant’s name is “Jon”?
(c) Are there additional forms of the name – e.g. is “John Doe” also “John J. Doe, Jr.”?
(b) Has a woman’s name changed as a result of marriage – e.g. is “Jane Doe” now “Jane Smith”?
In addition to these considerations, is there any possibility that a foreign name has been “Anglicized” – e.g. has “Samir” become “Sam” and was it a legal change of name? Are cultural naming conventions an issue – e.g. is a name such as “Juan Doe” also properly “Juan Doe Torres”? If any of these apply and are not recognized, you risk the ability to reach assets held in that name.
2) For a business:
(a) Are you sure of the spelling of all forms of the name used?
(b) Are there additional forms of the name – e.g. does “Acme Logistics Systems” write checks as “ALS”?
(c) Does the name correctly reflect the present (and any past) legal composition of the business? – e.g. did "John Doe dba Acme Sales" become "Acme Sales, Inc." between the time the claim arose and the time when it was filed?
This last point directly relates to the next section, and it’s helpful to interpose some abbreviations.
aka = also known as
dba = doing business as, (individuals and businesses can register fictitious business names)
fdba = formerly doing business as, or
fna = formerly known as
And one that’s not an abbreviation, but is useful – “individually, jointly and severally”.
What is a defendant’s legal status and composition?
(1) For an individual:
(a) For more than one form of the name - “John Doe aka John J. Doe, Jr.”; “Bill Doe aka William Doe”, even “John Roe aka Jon Roe”, if you are not sure and cannot learn with certainty.
(b) For a changed name - “Jane Doe fna Jane Smith” (nee can also be used for a maiden name but is uncommon in legal pleadings and, if an individual has legally changed a name, “fna” is appropriate).
(Note: you are not charged double for serving a defendant named two ways, so it makes sense to do it.)
(2) For a business:
(a) Sole proprietorship – an individual operating a business using a registered fictitious business name - “Joe Doe dba Joe’s Appliances”. It has been suggested here that one need not register a dba if one is simply using one’s own name as a service provider – e.g. “dcatz consulting”. I would suggest that the more prudent practice is to follow
the form suggested. Doing so would result in a judgment which could be used on assets in either name; failing to do so would provide a judgment which reaches one or the other, and it may be the wrong one.
(b) Corporation – “Acme Sales, Inc.” or “Acme Sales Corporation” (investigative methods can be discussed)
(c) Suspended corporation – “Acme Sales, Inc., a suspended corporation” – in some states, continuing to operate in a suspended status creates the right to allege liability of individual officers. Consult counsel.
(d) Company within a company – “Acme Sales, a wholly-owned subsidiary of Giganto, International”. Now you have two potential sources of recovery, as it can also be sought from the controlling parent.
(e) L.L.C. – Limited Liability Company – “Acme Sales, L.L.C” – L.L.C. changes the means of recovery.
(f) Partnership – best practice = name all known defendants – e.g. “Acme Sales, a partnership; Jane Doe; John Roe, individually, jointly and severally”. A similar format should be used for multiple companies.
Corporate records, including LLCs, can be found on the website for a state’s Secretary of State. Fictitious name filings are normally filed with the County Recorder where the business is based or a state’s Recorder counterpart. Numerous commercial sources exist online to get the same information and more. Google “public records” and choose one. It’s very cheap insurance.
A judgment against a mis-named defendant can be worthless – there are no associated assets. If you are fortunate, the court will allow you to amend the judgment, but it may not. Even then, it is easier, faster and less expensive to do it right the first time.
90-95% of cases filed in higher courts than Small Claims are resolved without going to trial.
85% of Small Claims cases go to judgment (15% of cases are about equally divided between settlement and failure to serve).
10-15% of Small Claims cases result in judgment for the defendant, as a rough average.
75-80% of judgments for all civil cases are uncollected.
While there are uncollected judgments for all civil cases, large and small, those figures mean that the majority of uncollected civil judgments arise in Small Claims. Plaintiff wins 85-90% of the cases that are heard and fails to collect 75-80% of the time. It is a very poor Rate of Return on the time and money invested.
The figures are the result of a combination of factors. I decided to open a thread concerning the first consideration after the decision to sue – designation of parties. If this prompts questions and a discussion, other factors can be considered – case presentation, asset location and collection or any other of interest. If the subject is not of interest or benefit, I’ll delete the post
It is said that getting judgment is easy and collecting is hard. Generally, this is true but, if the judgment is against a mis-named defendant, collecting may be impossible. In September, there were 5 posts concerning mis-designating defendants. The posts were from plaintiffs and defendants. It was 5 too many. What are some naming considerations that bear on collectibility?
(Disclaimer: all names are for illustrative purposes only and do not purport to represent known or prospective litigants.)
What is the defendant’s name?
1) For an individual:
(a) Have you used a nickname or contraction – e.g. “Bill” or “Billy” for “William”?
(b) Are you sure of the spelling – e.g. is the claim against “John”, when the defendant’s name is “Jon”?
(c) Are there additional forms of the name – e.g. is “John Doe” also “John J. Doe, Jr.”?
(b) Has a woman’s name changed as a result of marriage – e.g. is “Jane Doe” now “Jane Smith”?
In addition to these considerations, is there any possibility that a foreign name has been “Anglicized” – e.g. has “Samir” become “Sam” and was it a legal change of name? Are cultural naming conventions an issue – e.g. is a name such as “Juan Doe” also properly “Juan Doe Torres”? If any of these apply and are not recognized, you risk the ability to reach assets held in that name.
2) For a business:
(a) Are you sure of the spelling of all forms of the name used?
(b) Are there additional forms of the name – e.g. does “Acme Logistics Systems” write checks as “ALS”?
(c) Does the name correctly reflect the present (and any past) legal composition of the business? – e.g. did "John Doe dba Acme Sales" become "Acme Sales, Inc." between the time the claim arose and the time when it was filed?
This last point directly relates to the next section, and it’s helpful to interpose some abbreviations.
aka = also known as
dba = doing business as, (individuals and businesses can register fictitious business names)
fdba = formerly doing business as, or
fna = formerly known as
And one that’s not an abbreviation, but is useful – “individually, jointly and severally”.
What is a defendant’s legal status and composition?
(1) For an individual:
(a) For more than one form of the name - “John Doe aka John J. Doe, Jr.”; “Bill Doe aka William Doe”, even “John Roe aka Jon Roe”, if you are not sure and cannot learn with certainty.
(b) For a changed name - “Jane Doe fna Jane Smith” (nee can also be used for a maiden name but is uncommon in legal pleadings and, if an individual has legally changed a name, “fna” is appropriate).
(Note: you are not charged double for serving a defendant named two ways, so it makes sense to do it.)
(2) For a business:
(a) Sole proprietorship – an individual operating a business using a registered fictitious business name - “Joe Doe dba Joe’s Appliances”. It has been suggested here that one need not register a dba if one is simply using one’s own name as a service provider – e.g. “dcatz consulting”. I would suggest that the more prudent practice is to follow
the form suggested. Doing so would result in a judgment which could be used on assets in either name; failing to do so would provide a judgment which reaches one or the other, and it may be the wrong one.
(b) Corporation – “Acme Sales, Inc.” or “Acme Sales Corporation” (investigative methods can be discussed)
(c) Suspended corporation – “Acme Sales, Inc., a suspended corporation” – in some states, continuing to operate in a suspended status creates the right to allege liability of individual officers. Consult counsel.
(d) Company within a company – “Acme Sales, a wholly-owned subsidiary of Giganto, International”. Now you have two potential sources of recovery, as it can also be sought from the controlling parent.
(e) L.L.C. – Limited Liability Company – “Acme Sales, L.L.C” – L.L.C. changes the means of recovery.
(f) Partnership – best practice = name all known defendants – e.g. “Acme Sales, a partnership; Jane Doe; John Roe, individually, jointly and severally”. A similar format should be used for multiple companies.
Corporate records, including LLCs, can be found on the website for a state’s Secretary of State. Fictitious name filings are normally filed with the County Recorder where the business is based or a state’s Recorder counterpart. Numerous commercial sources exist online to get the same information and more. Google “public records” and choose one. It’s very cheap insurance.
A judgment against a mis-named defendant can be worthless – there are no associated assets. If you are fortunate, the court will allow you to amend the judgment, but it may not. Even then, it is easier, faster and less expensive to do it right the first time.