How was this possible? What does it take to be successful at trial, no matter the side you’re on? Today, I’m going to give you some important advice for success in an Eviction trial. The key is not some fancy lawyer-speak. It’s all about the substance of your case and just how prepared you are.
Naturally, you’ll move on to Trial if you have first filed your case properly. Follow this link for a detailed review of Eviction Filing.
Your Trial Notice
You have filed your eviction after you delivered a proper notice to vacate to your tenant. The next step is going to trial. You will receive a written notice from the court, mentioning when that trial date will be held.
If your Court is conducting trial by video conference, you’ll receive additional instructions to allow you to attend the trial by video or telephone. You may also be instructed on the procedure for submitting your evidence (Lease, Notice to Vacate, Rent Ledger, etc.) to the Court for review during your trial.
Some courts will change that trial date on you, so I recommend giving the court a call the day before your trial date to make sure that the trial is still set on the next day’s docket. Surprises happen. Sometimes judges are out of town or judges get sick.
Also, because of alternative service, sometimes the court will grant an additional week from the initial trial setting to give the Tenant the required 6 days of notice before the trial. The Court may or may not notify you on time.
You’ll want to make your own call to prevent going to the court and having that disappointing notice that, “Your trial has been postponed for an additional week. Come and see us in seven days.”
I advise you to pick up the telephone and call the court to confirm that your client has been served on time and that the trial is still set as scheduled. Make sure that your trial is set for the very next day, and make sure you know the time that your trial is set.
How Much Time to Allow for Your Trial Setting
Generally, these trials, if they’re heard by the Judge only (what’s referred to as a bench trial), go pretty quickly. You’ll find that the docket may be full of other cases. There may be 30-50 cases on a regular eviction docket. I’ve seen dockets with over 100 cases for a single morning, but, surprisingly, these cases can go by rather quickly.
You may spend an hour or an hour and a half there waiting for your eviction case to be called, but your part can be done in as little as two or three minutes. This is actually very routine, particularly if the defendant does not show up to defend their case. Your lawsuit is presented and over rather quickly in these situations.
Don’t Show up Late to Your Eviction Trial
However, the time of trial is extremely important. Don’t count on the Court simply holding your case if you’re running late. If you miss the docket call (it’s like the teacher calling attendance in grade school), you case will likely be dismissed.
If you are running late, call the Court BEFORE the docket is called. If your lucky, the court clerk will make a note on your file or hold the case before dismissal. If you’re unlucky, you’ll have to begin the entire process over if your case is dismissed.
What Happens if the Defendant Appears at Trial?
Complications come when the defendant does arrive and is prepared to defend their position and the reason that they believe they are not in default. Some courts will send these cases to mediation before trial. Mediation is a process where the courts will hire or will have volunteers who come in on a neutral basis.
These parties will meet with the plaintiff and the defendant just before they are able to speak with the Judge about the case, to attempt to work out a resolution to the dispute.
You may enter the courtroom believing that there’s no way that this case can be resolved, but you may be surprised that through the process of mediation, a resolution is possible. In fact, a resolution that you may actually find attractive is a possibility.
It’s helpful to have legal counsel with you at this time so that you can be guided through the process and you can avoid some of the pitfalls that come even when parties reach a mutual settlement agreement. Among those is an incomplete agreement. If there are no real consequences for breach of the agreement, what motivates the Tenant to actually comply?
Additionally, it helps to have someone who is familiar with the process enough to bargain from a position of advantage for you, the Landlord. Having legal counsel with you during this process is an advantage if you know that a defendant is going to attend the trial and you suspect that you’ll need assistance, particularly with bargaining a settlement, it’s best to consult a Landlord/Tenant attorney.
If you and the Tenant reach a settlement, it is usually done in a written agreement, and you may or may not present that agreement together to the Court. Afterward, you are dismissed. However, if you are unable to reach a settlement at Mediation, you will go back into the courtroom to wait for your case to be called to trial.
Once you Reach the Judge’s Bench
You may be surprised to discover that there is not court reporter in the Justice Court, and no exhibits are taken. While the court might review your Lease or they might review your Notice to Vacate, none of that is taken into the record. There is no formal record of the Justice Court proceeding.
There’s no one there typing down all the words that are said. That’s not something that happens in the Justice Court. You cannot later refer to what happened in the Justice Court because there is no record. The only things that are on file are the petition and perhaps an answer that is filed by the defendant.
The trial process in the Justice Court should be orderly. The Plaintiff usually presents their case to the Court first. This usually involves establishing the Lease, the rent amount owed, the details of non-payment, and the amounts the Landlord claims remain unpaid.
For an Eviction that does not involve rent, the Plaintiff will present the evidence that the Tenant has violated the Lease to an extent to warrant the Eviction. This might require photographs, reports, recorded communication, etc. These cases are hard to prove and will likely require strong evidence at trial.
The Tenant’s Defense
After the Plaintiff presents their case, the Defendant will be able to ask questions of the Plaintiff to challenge their case. The Judge will also allow the Defendant to present their defense and evidence.
There are no counterclaims in an Eviction, so the Defendant will not be able to seek a judgment against you, the Landlord, even if you are unable to win your Eviction case against them. However, if a Tenant is successful at trial, you may have to pay their attorney’s fees.
Keep it Simple
I tell all of my Clients this before we begin an Eviction Trial:
You want to be accurate, direct, and brief. I will ask you specific questions; make sure you give the shortest answer possible for each.
If you are presenting your case to the Court on your own, do yourself a favor and keep everything simple. You do not need to give the Court every possible detail.
You have a Lease. When was it signed? What is the address? What is the rent amount? How much rent remains unpaid?
You delivered a Notice to Vacate. When? How? To whom?
That’s your basic non-payment of rent case. If you stray too far from these facts, you may open up an opportunity for the Defendant or the Judge to tear your case apart. I’ve seen Landlords talk themselves right out of a Judgment, even without a Tenant present to defend themselves.
Everything Goes Your Way. You Win! Now What?
Generally speaking, you will obtain a judgement. You may obtain an award for unpaid rent. You may obtain a possession right. Your Judgment will state the date the Judge Signed the Judgment, and it will state the amount of money award to you for unpaid rent.
The Judgment should also award court costs to you and possibly applicable attorney’s fees. You Eviction Judgment should also establish the amount of monthly rent and the amount of the appeal bond. Your Eviction Judgment is not final until the Tenant’s opportunity to appeal has expired.
The Writ of Possession and the Eviction Appeal
To collect possession of the property, you’re going to have to wait some time. Generally speaking, the law will allow five days – no fewer than five days – for you to wait, even after you’ve won the case, before the court will allow you to demand possession.
During that time, the tenant has a right to appeal. However, the Tenant may decide not to appeal (or may not be aware of their appeal right). Once that appeal window has closed, if the Tenant has not vacated the rental property, you will have the right to obtain what is called a Writ of Possession.
To purchase a Writ of Possession, you will have to go back to the justice court and pay additional fees, but this step will allow the possession process to begin. The Court’s order can be used by county officials to forcibly remove the tenant from the property.
Be Patient While You Wait for the County to do its Job
Without the Writ of Possession, we do not recommend–even though you won the case–that you apply self-help. If the Tenant is still there, DON’T go to the property and attempt in any way to forcibly remove anybody, DON’T go to the property and attempt to change locks, and DON’T go to the property and confront the Tenant.
In fact, once you purchase the Writ of Possession and once the court allows you to remove the tenant by Writ of Possession, our recommendation is you let the county do its part of the process.
The constable will deliver the Writ of Possession notice. The constable will later inform you of how the notice will be enforced. You and Constable will coordinate the actual force-out. You may watch, you may attend, you may be present when the county forcibly removes the tenant. You may have to hire movers to actually empty the unit. The Constable will instruct you.
The Limits of Your Eviction Judgment
Your Judgment may have awarded possession of the rental property, unpaid rent, court costs, and attorney’s fees. What you cannot get in your Eviction judgment are unpaid utilities or late fees
You also cannot recover contractual damages for pet deposits or actual damages to the property like broken windows or broken doors or problems on walls or other things. All of those issues will have to be raised in a separate lawsuit.
Collecting Your Eviction Judgment
As far as collection of your judgement, that is a separate process. It is possible through the assistance of an attorney, or on your own to record a judgment against your Tenant and to file a proper judgment lien.
An attorney can assist you with filing what’s called an Abstract of Judgment. That document records the Judgment and is filed with the County Clerk’s Office to give notice to the public (an to credit reporting agencies of this judgment debt).
To exercise this judgment to seize the non-exempt real estate and/or non-exempt personal property of a Tenant, you can purchase a Writ of Execution. This particular order is used to collect property that is registered with the county and can be seized for sale. The proceeds of such a sale will go toward the judgment you have against the Tenant.
If you’re interested in collecting on judgements, whether they are a year old or five years old or eight years old, it is still possible to collect on these judgements. If you have old judgements or if you’ve recently obtained a judgement for eviction, we can assist you with this an all manner of trial matters pertaining to your Eviction needs.
