a. Tenant Friendly Complaints

While civil cases can often be complicated. Two types of civil cases are specifically designed to be filed without the help of an attorney:

1. Small Claims Cases
   Small claims cases involve claims for $7,000 or less.¹⁴ Courts have small claims forms online and available at the court house. For more about how small claims works and forms go to: mass.gov/courts/selfhelp/small-claims
2. 2. Tenant Petitions to Enforce the State Sanitary Code
   To ask a judge to order your landlord to repair bad conditions that violate the state Sanitary Code use Tenant Petition for Enforcement of the State Sanitary Code (Form 14). For more about tenant petitions, see Chapter 8: Getting Repairs Made.

b. Writing the Complaint

The first step to starting a civil case is to write and file a complaint with the court. At a minimum, the complaint identifies the parties.

You are the plaintiff and the person or entity you are suing is the defendant. The complaint tells the court how the defendant violated the law. It also includes the basic facts that support your claim. And finally, it outlines the solution (remedy) that you want the court to provide. For example, do you want the court to:

• Order your landlord to make repairs?
• Order your landlord to turn on the heat?
• Order your landlord to return your security deposit?
• Order your landlord to compensate you for the harm you have suffered?
• Fine or jail your landlord for her behavior toward you?

The courts provide complaint forms in the Clerk’s office for small claims actions and Sanitary Code enforcement petitions. For other types of civil complaints, you can go to a Trial Court Law Library and ask them for books that provide a guide to writing civil complaints. However, depending upon how complicated your case is, an attorney's guidance may be important to be certain that your complaint is in the proper form. You can ask the court clerk’s office if they have pro-bono (free) attorney days if you need assistance, or if you are in Greater Boston you can call the Volunteer Lawyers Project. See Directory.

c. Filing the Complaint

To begin a lawsuit, the original copy of the complaint is filed in the clerk's office of the court where you can file your case. The clerk does not have to accept complaints that do not comply with court rules.¹⁵ You should keep at least three copies of your complaint.

When you file your complaint, you must pay a filing fee unless you can show the court that you are unable to afford the fee.¹⁶ The procedure for not having to pay (waiving) filing fees is discussed in the Paying Court Fees section in this chapter.

When your complaint is filed, a court clerk will assign a case number called a "docket number." Ask the clerk to write this number down for you, and keep it in a safe place. This number must appear on all court papers filed in your case.

Some courts won't assign a docket number at the time that you file your complaint. In that case, the court will send you additional papers in the mail with the information you need to take additional action on your case.

It is very important that you follow up diligently with the court to make sure that your case was properly filed. If you don't hear back from a court 10 days after you file your case, call the Clerk's Office to ask about the status of your case. You should also be able to track your case on the MassCourts.org website using your docket number or your name.

d. Serving the Complaint

When you file a complaint, the clerk will usually give or mail you a document called a summons. You must deliver (serve) the summons and the complaint on the person or entity named as the defendant in your lawsuit. While the complaint tells a person why she must appear in court, a summons is the official court document that tells a person when to appear in court. It notifies her that you are starting a lawsuit.

If the clerk does not give you a summons the same day you file a complaint, ask when you should expect to receive it.

You must have a sheriff or a constable deliver a copy of the summons and a copy of the complaint to the defendant within a certain period of time. The time period will vary, depending on the type of legal action you are starting. This delivery is called service.¹⁷ You cannot serve a summons and complaint yourself. Also if you are suing more than one person in the same lawsuit, you must serve each person separately. For example, if two brothers are the landlords of your property, you must serve each brother with a copy of the summons and complaint.

To serve the summons and complaint, you can either:

• Hire a sheriff or constable to serve the papers, or
• Ask the court to appoint a "special process server." A special process server is someone who is not involved in your case, over age 18, and willing and able to serve the papers on the defendant.¹⁸ A special process server usually does the work at no cost. The disadvantage is often a lack of experience in dealing with a defendant who may be very upset or try to refuse receipt of service.

After service is made, the person who served the complaint (called a “process server”) completes what is called the "return of service" section on the original summons. The person must describe for the court how service was made. For example, the process server may give a copy of the summons and complaint in person to the defendant, or the process server may have left a copy at the landlord’s door and sent a second copy by first class mail.

The server then files the original summons and complaint with the court, or returns it to you so that you can file them. Service is not complete until the summons, with the return of service section properly filled out, is filed with the court. Improper service of the complaint is grounds for your complaint to be dismissed¹⁹ . For example, you cannot mail a summons and complaint to an individual defendant.²⁰

If you cannot afford court fees, a court can waive these fees if you meet the court's definition of indigency under certain guidelines.²¹ This means that you will not have to pay them. See Affidavit of Indigency (Booklet 9). You can use this form to ask that you not have to pay court fees. If a clerk or judge determines that you are indigent, the same form can also be used to ask the county's sheriff to serve your summons and complaint without charging you for the service.

The clerk is authorized to make the decision to waive routine filing and service fees without asking you to make an appearance in front of a judge. However, you must go before a judge to waive special fees, such as fees for a deposition or an expert witness.

a. The Answer and Counterclaims

Except in small claims cases, the defendant is required to file an answer to your complaint with the court. If a defendant does not file an answer, she will default, and a judgment will enter against her.) The answer admits or denies the allegations in your complaint. The answer also state defenses to your claims, and asks the court to take action favorable to the defendant. In the answer, the defendant may also file counterclaims that create a countersuit against you. If the defendant files any counterclaims, you must file your own answer to these counterclaims, just as the defendant is required to file an answer to your complaint.²²

b. Motions

Motions are written requests filed with the court that ask the judge to take action in your case.²³ Most motions can be made at any time in the case by any party to the case. Common examples are:

• A motion to dismiss, which asks the court to end the case.
• A motion for a temporary restraining order, which asks the court to prevent or require certain actions by a party.
• A motion for an attachment, which asks the court to freeze the assets of a party in anticipation of a judgment for money.
• A motion to compel discovery if the other side does not produce the information or documents that you are entitled to examine.

c. Discovery

All parties to a lawsuit are entitled to ask for discovery.²⁴ Discovery is the process that allows the parties to “discover” and examine each other's evidence, including a list of witnesses. This a powerful tool for both sides, because it requires both parties to put their evidence on the table before trial.

Discovery takes different forms:

• Interrogatories
  Interrogatories are your written requests for sworn written answers to questions.
• Request
  for Production of Documents Requests for Production of Documents are your written requests to examine documents or receive copies of documents.
• Requests for Admissions
  Requests for Admissions are your written requests that a party admit or deny in writing particular statements of fact.
• Depositions
  A deposition is your verbal questioning of a witness under oath in front of a court reporter who produces a transcript of the deposition.

The discovery process can be very complicated and time-consuming, but it can be a very important part of a civil lawsuit. Remember: Both sides in a case are entitled to discovery.

Discovery can force both sides to show the other side the evidence available in the case, but it does have limits. If you ask for something that the other side does not think you have a reason to review, they may not respond, or they can ask the court for an order denying the disclosure of the disputed item. In turn, you can file a motion asking the court to force them to produce the information if they refuse to give it to you.

When you go to trial, your goal is to persuade a judge or a jury to decide in your favor.²⁵ You must prove your case. To prove your case you must tell your story with evidence and then make an “argument” that the law has been violated. To accomplish this, you must prepare ahead of time how you will prove your case. Before you go to court, you should:

• Outline on paper the facts in your case. The better you know your case, the more persuasive you will look in court.
• Prepare yourself and your witnesses to testify about these facts.
• Gather all the evidence, including documents, photos, and paperwork, that you want the court to see. Notify the other side in advance about your witnesses.
• Evaluate each witness, document, or object and consider whether people who have no knowledge about your case will find the facts as you present them believable and relevant.

a. What Is Evidence

Evidence is what the court allows you to use to prove your case.²⁶ It can be testimony from you, or the defendant, or witnesses. It can be documents and physical evidence, such as letters, photographs, and reports.

Evidence is convincing if it is credible or believable. For example, a witness may testify to the exact facts of your case, but if she also admits that she previously told a very different version of the facts, few judges will rely on her testimony to decide your case.

b. Preparing Witnesses

Witnesses play an important role in a trial. The purpose of a witness is to reveal the facts of a case or to confirm facts already revealed. In some cases, the testimony of witnesses may be your best evidence.

With some exceptions, witnesses may testify only about events of which they have personal knowledge. Witnesses cannot testify about what most people said to them or to anyone else. This is called hearsay.

Hearsay is generally not allowed in court. For example: Your neighbor can testify that she saw a worker in the basement working on the furnace. She usually cannot testify about what the worker said to her.

Before you go to court, it is very important that you prepare all of your witnesses. This includes yourself, if you plan to testify. Witnesses are telling a story to a judge or jury who, in most cases, are completely unfamiliar with the facts of your case. You must draw out their testimony in an organized and logical way to present all the important facts.

Preparing witnesses is also important because people are usually nervous when they are in court testifying. Preparation helps them feel more comfortable.

Preparation also is important because you do not want to have any surprises when your witnesses testify. You want to ask them questions and know what their answers are before you get to court.

To prepare each witness:

• Make a list of the facts that you believe this person may be able to testify to.
• Create a list of questions that help the witness to state the facts.
• Write your questions down in a logical order.
• Go through your questions with your witnesses once or twice so you are all familiar with both the questions and the answers. Your witness should be familiar with the questions, but not overly rehearsed.

When you create questions to ask witnesses, the court does not allow you to put the answer in the question. This is called "leading the witness." To use a very simple example: If you want a witness to say that a person was present on a particular day, you should ask: "On June 1, 2008, who visited you?"—not: "On June 1, 2008, did Jane Doe visit you?"

Here is an example of questions that create a story and do not lead the witness. You want to prove that your landlord knew about bad conditions using the testimony of a neighbor who was present when your landlord visited your apartment. You might ask questions as follows:

• Please state your name and address.
• On January 1, 2003, did you visit my apartment?
• On that date, was anyone else present?
• Who was present?
• What rooms did my landlord enter?
• Did I say anything to the landlord?
• What did I say? (This is not hearsay because a witness can testify about what you, as the plaintiff or defendant in a case, said.)
• Did my landlord say anything?
• What did my landlord say?

Go through your questions with your witnesses, and write down the answers. If you are the witness, go through the questions yourself.

You can bring a written list of the questions and answers to court. You do not have to memorize them. Witnesses, however, may not bring a written list of answers, but sometimes the court will allow them to refer to their own notes to refresh their memories. Also, make sure you tell your witness—and remind her of—the date and time your case is scheduled in court.

c. Preparing Evidence

Evidence such as documents, damaged personal property, photographs, reports, and other papers or objects are important to proving your case. For example, a photograph of a ceiling falling down, or dead mice in an apartment, can create a lasting impression on a judge or jury. As they say, "a picture is worth a thousand words."

In court, documents and physical evidence will be referred to as "exhibits." The court will assign each exhibit a number.

Exhibits can be very important proof. Here is a list of evidence that you may be able to use in court:

• A written lease to prove you have a tenancy.
• Rent receipts and cancelled rent checks to prove that you have paid rent.
• Board of Health reports, which can be used to prove violations of the state Sanitary Code.
• Letters and notices that you sent the landlord, which prove you gave her notice of bad conditions.
• Photographs of bad conditions, which can prove their existence.
• Diaries, logs, calendars, or other written records, which may be used to show when certain events occurred and can also be used to refresh your memory of them.
• Damaged personal property. There are procedures for items to be accepted as evidence by the court. The admission of evidence can be a complicated matter, and not all courts handle it the same way.

First, you must ask a judge permission to have your evidence (or exhibit) "marked for identification." A clerk will then give your evidence an exhibit number. Then you must establish that the evidence is authentic and relevant. Usually this is done by asking a witness questions about the exhibit. For example, you might ask a witness to identify a photograph, and then ask if the photograph is a fair and accurate representation of the place or object just identified. Then you ask a judge to "admit" the exhibit into evidence.

d. Board of Health Reports

It is very important to ask the Board of Health to provide “certified” (sometimes called “attested”) copies of their report before your court date. If you have a Board of Health report that has been certified "under the penalties of perjury" by the Board of Health inspector, you can put it into evidence - even if the inspector is not in the courtroom to testify about the report.

Be prepared to testify about when and why you called the Board of Health for an inspection, and then after you do that, you can put the inspector's report into evidence.

e. Preparing Your Arguments

You make a statement or "argument" to the court when you summarize the facts of your case and explain what you want the court to do for you. Before the court hears testimony in a trial, the parties sometimes each make an "opening statement" or "opening argument." This statement should be short and to the point, highlighting the main points of your case and what you are asking the court to do. At the end of the trial, each side will make a "closing statement” or “closing argument." At this time, you should emphasize the facts that support your case, explain why you believe your case is the more persuasive, and again tell the judge what you want her to do.

f. Going to Court

Going to court is an unfamiliar experience for most people. One way to help yourself feel more comfortable in court is to visit the courthouse before your trial date. You can learn a great deal from simply watching court cases. Don’t be shy about calling your court to ask when they hear cases like yours.

In most cases, courtrooms are always open to the public. If possible, watch cases similar to yours. Look at where the parties stand, where they put their papers, and how they address the judge. Watch how the clerk and the judge do their jobs.

Just remember that almost everyone is nervous in court. You can steady your nerves by being prepared and clear about what your goal is.

g. Common Sense Tips about Going to Court

When you go to court, you should keep the following in mind:

• Dress Respectfully
  Unfortunately, people make quick judgments based on appearance, and your clothing might influence the treatment that you receive. Judges, clerks, and lawyers wear business clothing. If you dress nicely, you may be treated with greater respect than if you appear in jeans and a T-shirt.
• Be on Time
  Not being on time can have serious consequences in court. If you are not present when your case is called, a clerk may dismiss your case and you will lose your case. If court begins at 9:00 a.m., be there early to give yourself time to find the right room. If you know you will be late, call the court and let the clerk know. For example, if you do not appear in an eviction case when the list of cases is called, the clerk will enter a default judgment and you will lose your case. If you had a good reason for being late, you can later ask the court to remove the default judgment. You do this by filing a motion to remove a default judgment. If the court will not remove the default judgment, you cannot file the case again.
• Be Respectful
  While you may find that some court staff are more agreeable than others, they have the power to make your life very difficult if they feel mistreated. When you arrive at the courthouse, you should be polite to everyone. You never know when you may need to ask someone for assistance. Always resist the urge to let nervousness control how you interact with others.
• Find the Right Courtroom
  When you arrive at the court (and remember, arrive early), go to the clerk's office and ask which courtroom your case is in. Go to that courtroom.

The first thing that usually happens is that a clerk calls the names of all the cases scheduled. When your name is called, let the clerk know that you are present by standing up and saying “here,” or going up to the clerk’s desk when you arrive to tell the clerk you are present, depending upon the court’s system. At that time, if you have started to negotiate a settlement with the other side, you can ask the clerk for more time to work out your agreement. If this is the first time the parties have met in court, you should expect that the judge will encourage you to talk with the other side and try and reach a settlement instead of having a trial. Some courts will also have mediators available as well.

If the clerk finishes reading the list of case names without calling your name, immediately go to the clerk and ask her to determine where your case is. You may be in the wrong courtroom, or the clerk's office may have made an error and not sent your case to the courtroom yet. If you don’t resolve why your case wasn’t called, the court may inadvertently default you.

• Ask Questions
  If you are unsure of what to do or what has happened, ask someone for help. On the whole, court staff can be very helpful.

If your case is scheduled for trial, your trial begins when your case is called by the clerk. The parties are then usually asked to make brief opening statements. Remember, your statement should be short and to the point. You should tell the court the important facts of your case and what you want the court to do for you.

After both sides make opening statements, each side will present its case by calling witnesses to testify and by introducing exhibits. After each witness testifies, the other side will have a chance to question the witness. This is called cross-examination.

When all the evidence has been presented, the parties will make closing arguments to the judge. This is when you tell the judge what you have proved and why she should decide in your favor.

If the case is before a judge, she may tell you her decision when closing arguments are completed, but, more often, the judge will take the case “under advisement."²⁷ This means the judge wants to think about it for a while. If that happens, you will receive the decision in the mail. Do not be surprised if you have to wait a few weeks or even a few months for a judge's decision.

The court's decision is called a judgment.²⁸ Under certain circumstances, you may wish to consider challenging the decision and appealing the case. Note: If you brought your case in small claims court, you cannot appeal if you lose. Generally, if a judge decided against you because she felt that the other side was more believable, you probably have no grounds for an appeal. On the other hand, if the judge did not follow the law, you may have a better chance of succeeding on appeal. A decision to appeal is complicated, and requires the assistance of an attorney. It is important to be careful when filing an appeal because you can be required to pay money to the other side for filing an appeal where there isn’t a reasonable basis for overturning the original decision.²⁹ In other words, if you file an appeal when you don’t have a good reason, a court could say your appeal is “frivolous,” and you could end up paying the other side’s legal costs.

If you want to appeal a decision, you must act quickly after receiving the court's decision, because appeals must be filed within a very short time. For example, in most civil lawsuits, the parties have 30 days to appeal a decision. In eviction cases, the appeal period is only 10 days. If the decision is not appealed within the time limit, the judgment becomes final.

Collecting money from a landlord or enforcing a judgment can be the hardest part of winning your case, and it certainly can be the most frustrating.

If your landlord is not willing to pay you or cooperate with the court's order, you should probably consult an attorney who specializes in collection law. In most cases, a judgment is enforceable for 20 years.³⁰ The primary legal ways to seek compliance with and payment of a civil judgment are:

• Attachment,
• Trustee Process,
• Execution
• Supplementary Process,
• Contempt.

a. Attachment

An attachment is created to place a hold on the sale or transfer of property before or during a lawsuit so that it will be available to satisfy a court judgment.³¹ An attachment can be requested as soon as you begin your court case or after you win. You must show the court that you have a good chance of winning your case and that your landlord may dispose of the property if she is not prevented from doing so. If you win a court judgment, the property attached can be sold by the sheriff without the losing side’s permission in order to pay the judgment.³²

b. Trustee Process

Trustee process is similar to the attachment process in that it places a hold on property during a lawsuit.³³ The difference is that a third party, a trustee, is asked to control or hold the property owned by the landlord. Most often, trustee process is used to ask a bank to freeze accounts held in the name of the landlord. When used against bank accounts, trustee process is a powerful weapon. It is hard to do business on a cash basis.

c. Execution

When your court judgment is final, you must ask the court to issue an execution in order to enforce the judgment.³⁴ A sheriff can then be hired to "levy on" the execution to obtain satisfaction of the judgment.³⁵ This means that a sheriff can have certain property sold to satisfy the judgment or order money to be removed from the losing side’s bank account. Because the levy process is complicated, an attorney should be hired to oversee it.

d. Supplementary Process

When you have an execution that requires your landlord to pay money to you, you are a creditor and your landlord is a debtor. In supplementary process, a court hearing is held so a creditor can ask a debtor about the debtor's ability to pay the money owed under the judgment.³⁶ Using the information obtained from a supplementary process hearing, the court can create an order requiring payment according to a specific schedule. In some cases, however, the court may be powerless because a debtor has no assets and is judgment-proof.³⁷ Small claims (for no more than $7,000) has its own supplementary process.³⁸

e. Contempt

When a landlord fails to follow the terms of a court order, she may be held in contempt and punished by the court.³⁹ For example, a landlord who fails to make court-ordered repairs may be ordered to live in her building until the repairs are completed.⁴⁰