This is an abbreviated version of the detailed Guide to Small Claims Court prepared yearly by the Wisconsin Judicial Council. You can also view this Small Claims Filing Instructions sheet for an overview on how to file a Small Claims request. This summary is intended as an introduction to Small Claims Court. It is not intended as legal advice.
For legal advice, contact an attorney.
For the statutes governing small claims actions, see Chapter 799 of the Wisconsin Statutes.
Suing the Right Party: Getting it Right the First Time
| Type | Definition | What is the Liability? | How do I tell? | Who gets named in the lawsuit? | Who gets served? |
|---|---|---|---|---|---|
| Natural Person | A living, breathing actual human being. | Personally responsible for obligations. | May not have a business name at all or may go by a "doing business as" tradename; in a business context this is known as a "sole proprietorship." | Individual person | Individual person (s.801.11(1)) |
| Partnership | Two or more natural persons who have joined together in order to conduct business. | Each partner is personally responsible for the all obligations incurred by the partnership. | May not have a business name at all or may go by a "doing business as" tradename | Each individual partner | Each individual partner (s.801.11(6)) |
| Limited Partnership | A legally-created organization (under ch. 179, Wis. Stats.) having one or more general partners and one or more limited partners. | General partners are liable for obligations; limited partners are not liable unless they are also general partners or participate in the control of the business. | Must have a business name containing the words Limited Partnership or the intials LP. | Business name | All general partners or Agent (s.801.11(6)) |
| Corporation | A legally-created organization owned by "stockholders" who have purchased or received shares of stock in the organization. | Individual stockholders are NOT personally responsible; only the assets of the corporation itself are liable for obligations. | Business name followed by the word "Incorporated" or "Inc." A corporation must give you fair notice that it is a corporate entity when dealing with you. | Business name | Officer, director, managing agent or Registered Agent (s.801.11(5)); contact the Wisconsin Department of Financial Institutions |
| Limited Liability Corporation | A legally-created organization (under ch. 183, Wis. Stats.) created by "members" who enter into an operating agreement concerning the business' activities. | Individual owners are NOT personally responsible; only the assets of the corporation itself are liable for obligations | Business name followed by the letters "LLC." A limited liability corporation must give you fair notice that it is a corporate entity when dealing with you. | Business name | |
| What is meant by "doing business as" or "DBA" | Often a natural person or a partnership will create a distinctive tradename under which to operate or advertise. For example, a person named Tom Smith might do business as "Smith Welding" or a partnership of Tom Smith and Peter Jones may do business as "Smith & Jones Welding." The legal designation in the case of a natural person would be "Tom Smith doing business as Smith Welding." | Business or shop may have a business name on its paperwork (letters or invoices), advertising, or building without any designation that it is either limited or incorporated (for example, LP, Inc. or LLC). | Individual person(s) with additional words "doing business as [name]." | Same as for natural person or partnership | |
This document is only a general guide and cannot substitute for sound legal advice. There are many other types of business entities that exist in Wisconsin or which do business in Wisconsin. Any change in the facts of your particular case may drastically alter the type of entity with which you are dealing and the appropriate parties that should be named in YOUR lawsuit.
INTRODUCTION
A. Small Claims actions can be filed for:
You are not required to have a lawyer. A Small Claims assistance program is available to the public every Tuesday morning from 9:00-11:00 a.m. in Room L1022 of the Courthouse. A volunteer attorney from the Dane County Bar Association is available to assist the public with questions, forms, and procedures regarding Small Claims monetary, replevin, garnishment, and eviction actions.
B. If you have been sued in Small Claims Court, your options are:
C. IF POSSIBLE, THE PARTIES SHOULD TRY TO SETTLE THE CASE BEFORE THE COURT HEARING IS HELD.
D. If you are under 18 years old, the court may require the appointment of a guardian ad litem to protect your legal interests.
STARTING YOUR SMALL CLAIMS CASE
A. Where to file
B. The Summons and Complaint
You can obtain all necessary Summons and Complaint forms in the Dane County Law Library, Room L1007, Dane County Courthouse, Madison, Wisconsin 53703, telephone: (608) 266-6316. You will need to complete the form, file the original and provide enough copies for service. You will also need to include a self-addressed, stamped envelope (SASE). A SASE is required for all mail filings.
COURT STAFF CANNOT GIVE LEGAL ADVICE.
If you are indigent (too poor), the court may waive the filing fees and costs of serving your papers, otherwise, you must pay these fees and costs. Make checks payable to "Clerk of Courts."
C. Filing the Forms.
The Small Claims forms are basically self-explanatory. If you need help, the staff can answer simple questions for you about filling them out.
D. Serving the Summons and Complaint on Defendant(s).
The Summons and Complaint must be served by the Sheriff or a process server. Service must be obtained not less than 8 business days before the return date, but no longer than 90 calendar days from the date the action was filed. Defendants who live outside of Wisconsin can also be served with the Small Claims papers in their home state. The Summons and Complaint may be sent by court mail only if all below are met:
Any party filing subsequent documents with the court after the initial summons and complaint, including requests to reschedule hearings, must send a copy to all other parties in the action and note on the court's copy that this was done.
The First Hearing
In Dane County, a defendant can file an answer in writing.
NEITHER PLAINTIFF NOR DEFENDANT SHOULD APPEAR AT THE FIRST HEARING (called a "Joinder").
Default Judgement
If the defendant fails to provide a written answer by mail (or in person) a default judgment may be entered against the defendant. A notice that judgment has been entered will be sent to the parties.
Court Commissioner Hearings
A. Rules of Evidence
The rules of evidence do not apply, except that evidence must be relevant, and privileged information may not be used. (NOTE: An essential finding of fact may not be based solely on a declarant's oral hearsay statement unless it would be admissible under the rules of evidence.) While the formal rules of evidence do not apply, small claims process does not change the law that decides the outcome of your case.
B. How to prepare your case.
Make a written summary of your claim; arrange for necessary witnesses or get their written statements. You may have to subpoena some witnesses to make them appear in court. If appropriate, you may present testimony or written statement from an expert witness.
C. Court Commissioner's Decision.
The Commissioner will either decide the case orally at the trial, or will send the parties a written decision within 30 days.
D. How to Request a Trial in Circuit Court Before a Judge.
A party may request a trial before a Circuit Court Judge by filing a written demand for a trial. The written demand must be filed as follows:
1. Within 10 calendar days of the Commissioner's oral decision, or
2. Within 15 days of a written decision, if any.
A jury may also be demanded at this time, but required jury fees must be paid.
If no request for a trial is filed on time, the Commissioner's decision is the final decision of the Small Claims Court.
The Trial
This is usually before a Circuit Judge, but can be before a jury. There is no extra fee for this trial, unless a jury is requested.
A. Preparing for Trial.
Where necessary, use a subpoena to force witnesses to attend the trial, or a "subpoena duces tecum" to make the witness(es) bring documents.
The judge may hold a pretrial conference to see if the case can be settled. The Judge will decide the case based on the evidence presented at the trial. T he Commissioner's decision will not be considered.
B. Conduct of witnesses.
Witnesses should speak clearly and not ramble.
C. Cross-examination.
The parties have a right to ask questions of witnesses for the other side. Parties should not, however, argue with witnesses.
D. Stipulated Dismissal Pending Payment.
The parties may enter into a payment agreement for the case to be held open while payments are being made, with a judgment to be entered only if the agreed payments are not made.
Another alternative, with approval of the judge, is that the case be dismissed with agreed payments to be made; if the agreed payments are not made, the case is reopened, either for entry of a judgment, or for trial.
After the Trial
A. Reimbursement of costs.
The winning party is entitled to be paid filing fees, out-of pocket court costs, and statutory attorneys' fees, if an attorney participated.
Lost wages, parking and transportation expenses to come to court are not allowed.
B. Financial Disclosures by Judgment Debtors.
The Small Claims Court will order the party owing money under the decision (the "judgment debtor") to send to the other party a statement disclosing his/her name, address, employers and their addresses, real property he/she owns, financial institutions in which he/she has deposits, and other information on standard financial disclosure forms.
These financial disclosure forms must be mailed to the winning party within 15 days after the judgment was filed in court. This information must be provided even if the judgment debtor decides to appeal.
If the judgment debtor does not provide the financial disclosure statement as required, you may petition a judge to have the judgment debtor found in contempt of court.
C. Docketing and Satisfying the Judgment.
You may docket your judgment by paying a fee. Docketing your judgment will make it a lien on real estate owned by the judgment debtor in Dane County. Your judgment may also be docketed for a fee in other counties. Wisconsin Supreme Court Order 98-01 makes court forms approved by the Records Management Committee mandatory in Wisconsin Circuit Court proceedings. Accordingly, form GF-129, Satisfaction of Judgment or Partial Release filed pursuant to '806.19, will be required for all case types, including Small Claims. This form is available on line at the Wisconsin Supreme Court website. The docketing fee of $5.00 must accompany the satisfaction when presented for filing.
D. Appeals.
A party may appeal to the Court of Appeals from a Small Claims judgment. You will probably want an attorney to help you, if you decide to appeal.
E. Reopening Default Judgments.
A party may reopen a default judgment within 6 months and, in some cases, up to a year after judgment is entered.
You must file a motion or petition to reopen. A hearing will be set to consider the reasons for the request to reopen.
F. Garnishment of Wages.
One of several ways to try to enforce a judgment is by "garnishment." Garnishment is an action to withhold part of a person's wages or bank accounts to pay off the judgment.
A garnishment can be filed in Small Claims Court, just as the original case was. Part of the judgment debtor's wages are exempt from garnishment.
If you require assistance appearing in court as a result of a disability, please call (608) 266-4311 (TTY: Call Wisconsin Relay 711) to make special arrangements.
