Should I Sue in Small Claims or in Superior Court?

By Patrick Gleeson, Ph. D., Registered Investment Adv ; Updated June 13, 2017
Courthouse building facade

Sometimes, you can sue effectively in small claims court – the playing field is evened by democratic court procedures and the cost is low. At other times, where the amounts in dispute exceed the small claims limit or where the relief you're asking for isn't allowed in small claims, you'll need to decide whether the amount in dispute justifies the cost of retaining a lawyer and pursuing your claim in superior court.

Overview of Civil Courts

The names of state civil courts differ from one state to another, but the underlying entities are small claims courts – with special rules and limitations – and superior courts (also called civil courts or courts of common plea), where the majority of civil trials are held.

One consistent feature of small claims courts in every state is a limit on the amount of money you can sue for. These limits range from $2,500 in Kentucky and Rhode Island to $25,000 in Tennessee. One of the first things you'll want to find out before making a decision about suing in small claims is the dollar limit in your state; a 50-state chart of these limits, along with descriptions of any exceptions, is included in the Resources section of this article.

Another limitation of small claims courts is that about half the states do not allow punitive damages in these courts. About the same number also disallow damages for "pain and suffering." Significantly, in some states you cannot bring a lawyer to court to argue your case for you; you have to do it yourself. This eliminates the considerable advantage that well-heeled corporations have over private individuals in civil suits, but it also means when you go to small claims, you'll need to do some research on court procedures and the legal theories that underlie claims and the defenses against them.

Superior courts, on the other hand, do not have limitations on either the dollar amount of claims or on the allowed causes of action – the reasons you're suing. While you can represent yourself if you wish – it's frequently spoken of as being in pro per – most cases in superior courts have attorneys representing both sides.

When Small Claims May Be A Good Choice

Small claims can be an excellent venue for many common disputes. If your air conditioning repairman guarantees his work in writing, but fails to follow up when your system fails again, that's a good candidate for small claims. First, the issues are straightforward – a contracted worker failed to fulfill the terms of his own contract. Secondly, in many states, perhaps most, the amount in dispute will fall under the specified dollar limits. Finally, small claims court judges do not insist on rigorous adherence to court procedures. In most cases, a modest, but well-prepared statement of your case and submission of essential evidence is all you'll need. Even in states that allow the parties to have legal representation in small claims, it's unlikely that you'll be up against a trial attorney because the cost of retaining a professional litigator generally makes it impractical.

When You Need an Attorney

In other situations, you may need a qualified attorney to represent you in superior court. If you're injured on a ride in an amusement park or if you're injured when you fell in a supermarket with a wet and slippery floor, you'll generally want legal representation. First, while you may have medical costs that could be pursued in any small claims court, unless your injuries are minor, they're likely to exceed small claims dollar limits. Secondly, you've probably suffered some pain related to your injury. Some states do not allow suits for pain and suffering. If your injury was caused by someone's negligence or reckless behavior, you may also be entitled to punitive damages – damages inflicted as a punishment by the court in order to discourage this kind of behavior. Punitive damage claims can run into the hundreds of thousands. In most cases, when you believe you may be entitled to punitive damages, you'll want to consult an attorney.

How Much Does an Attorney Cost?

In some ways, the question is like asking how much paintings cost – they range from over $100 million to hardly anything at all. Likewise, some well-known attorneys require large retainers to go to court, perhaps $50,000 to $100,000, while others require less. Unlike paintings, however, no lawyers cost hardly anything at all. Bill Gable, a copyright attorney for Warner Brothers, speculated that in a large city like Los Angeles, going to court with even the most community-oriented attorney might run at least $50,000. There are a surprising number of suit-related costs you'll be paying for, among them document copies, claims servers and legal stenographers for depositions. Depositions of principals and witnesses and preliminary court hearings before the actual trial can add thousands of dollars to your out-of-pocket costs even before trial. Therefore, one of the first things to consider when choosing a courtroom venue is: Do the risk/reward metrics justify getting an attorney and going to superior court? If not, small claims may not give you all you want, but it will certainly provide an opportunity for some recovery when going to superior court with an attorney is financially impractical.

About the Author

Patrick Gleeson received a doctorate in 18th century English literature at the University of Washington. He served as a professor of English at the University of Victoria and was head of freshman English at San Francisco State University. Gleeson is the director of technical publications for McClarie Group and manages an investment fund. He is a Registered Investment Advisor.