Defendant Advice

What if you are the Defendant?

If someone files a lawsuit against you, remember that the burden of proof is on the plaintiff. The person suing you must produce evidence that shows that what he/she is arguing actually happened and that he/she was wronged in some manner. If the plaintiff fails to introduce this evidence you will win, no matter what actually happened.

  • Question everything about the plaintiff’s case within reason.
    • When preparing your defense, it is important to have actual evidence to dispute the plaintiff’s evidence or exhibits,
    • Keep in mind that you will be under oath, so do not lie to the judge
  • Attack the time and place of the agreement
    • The judge will be particularly interested in the circumstances surrounding the agreement, especially if there was no written agreement
    • You may convince the judge the plaintiff's case is weak, or that the plaintiff's recollection is faulty. If it is faulty in this area, then maybe it is faulty on the amount of the money lent or the terms of repayment. This is exactly the doubt you want to place on the plaintiff's case.
    • Of course remember, if the plaintiff has evidence that you accepted the amount of money, you better have evidence to show it was a gift or a donation or something else. Otherwise, the plaintiff may convince the judge that the money was lent to you despite the lack of certain technical requirements.
  • Another strategy may be to convince the judge that the plaintiff is mistaken or misstating the amount which you owed. [You may do this if there is strong evidence that a debt exists, or you can argue to the judge that no contract exists. You are saying that if the judge finds a contract exists, then the amount is incorrect as argued by the plaintiff.]
    • The plaintiff may be seeking damages for which he/she is not entitled; for example, lost time from work, or costs of travel and parking at court. Plaintiffs are told to ask for everything, even if it is not all awarded, and even if it is more than the jurisdictional amount of the Small Claims Court.
    • In your defense, you should pick apart each aspect of the damages sought by the plaintiff. Maybe they calculated interest wrong, maybe the plaintiff did not actually lend you all they said. Maybe the plaintiff "forgot" to tell the judge you repaid certain amounts of the loan. Or maybe the money paid to you was, in fact, payment for services which you performed and was not a loan. All of this needs to be explained to the judge and you should approach the case as if you have the burden of proving any of these items.
    • You should have written evidence of all such items you are attacking about the plaintiff's case.
    • If you are being sued for receiving certain goods and not paying for them, your defense might be that you never received them. [Remember you cannot make up facts, since you will be testifying under oath.] However, remember the plaintiff must prove that you received them. If he calls a witness to testify that he picked the goods up from the plaintiff and drove them to your shop, certain questions arise. Did he find the right location? Did he give them directly to you? Who did he give them to? Maybe he left them at the front door because the door was locked and someone stole them. Be sure to think of these aspects and have arguments for them. Of course, you can bring in your witnesses to show that no goods were ever delivered.

In short, you should prepare your case as thoroughly as the plaintiff should prepare his/hers, and try to anticipate all of the elements the plaintiff will use to build his/her case. Then take each one apart to see if you have evidence to show that the plaintiff was mistaking or mistaken about certain key facts. If you can do this, you may win, regardless of what actually happened.

Posted in: Small Claims