Going to a Hearing
The information below should provide both the plaintiff and the defendant with basic procedures in the preparation of their civil case. In addition, the parties may view a videotape explaining basic procedures of court. Viewing of this video is strongly urged by the court if you are a pro se party (not represented by an attorney). Please contact our office to obtain availability of video viewing.
It is illegal for the clerks or the judge to give you legal advice. If you should need legal advice, please see an attorney. You may represent yourself in Magistrate Court or you may hire an attorney to represent you. If you represent yourself, you are responsible for knowing the law, the rules of this court, the procedures of this court, and the rules of evidence. In some cases, you may need to seek the advice of an attorney to determine which evidence to introduce. It is illegal for the judge or any of the court's employees to tell you what to introduce or how to try your case.
Preparing for the Hearing
Please do not ask to talk to the judge. It is unlawful for a judge to discuss a case unless both plaintiff and defendant are present, as this is ex parte communication.
If you should move, it is your responsibility to inform the court, in writing, of your new address. The court is not responsible for parties who do not receive their hearing notice because they did not inform the court of a new address. The court may issue a default judgment against a defendant, who does not appear at the hearing. If the plaintiff fails to appear, the court may dismiss the case.
The plaintiff must prove the defendant is indebted to the plaintiff, and must also prove the exact amount of that liability. The Magistrate Court is required to apply "the Rules of Evidence" found under Title 24 of the Official Code of Georgia. The court will not accept estimates, letters, or statements which are considered "hearsay" for the purpose of proving damages. This means that if the person who wrote the letter or statement is not at the hearing to testify, the document will not be admissible. The party introducing such evidence must have the maker of these writings in court, to verify the writing so that the other party can cross examine (question) that person. Just as you may not introduce a writing without its maker in court, you cannot tell the court what someone said who is not in court at the hearing.
You should gather all of your documents (receipts, warranties, etc.) and organize them before the hearing. You will need to notify your witnesses of your court date. The court is not responsible for witnesses who do not show up at the hearing unless the court subpoenaed that witness. You may ask the court to subpoena witnesses for their appearance. To do this you must provide the court, in writing, the witness(es) name(s), address(es) and phone number(s). There is a $10 service fee to subpoena a witness in the Lowndes County area. For witness(es) outside the Lowndes County area, please contact the court for procedures and costs.
If you decide to hire an attorney after filing your claim, make sure the attorney files a Notice of Appearance with the Court in advance and not on the day of the hearing. If such notice is not filed, the Court may refuse to allow the attorney to represent you. If you chose to hire an attorney please do so as soon as possible. Waiting until the last minute puts everyone at a disadvantage.
Prior to the Hearing
You will receive notice of your hearing by mail. If after receiving your hearing notice you discover that you have a conflict, you should immediately request a continuance, in writing, to the court and state the reason it is needed. Do not wait until near or on the trial date to ask for a continuance where there are no legal grounds. One continuance may be granted at the judge's discretion. A second continuance will be more difficult to obtain.
On the date of the hearing, please report to the Magistrate Court (civil division) before time for the hearing with all of your evidence and witnesses. Do not be late! If the plaintiff does not appear at the appropriate time, the case may be dismissed. If the defendant fails to appear at the hearing time, a default judgment may be entered.
At the time of the hearing, a clerk will take the parties, attorneys, and witnesses to the hearing room. The parties will have 10 minutes to discuss the case to see if a settlement can be reached without a hearing. The court is required by Georgia law to require the parties to attempt to reach settlement. The court does not ask that anyone accept an unreasonable or unfair offer, but only that the parties attempt to reach an agreement. All evidence should be shown to the other party during the settlement period. The parties may attempt settlement any time prior to the hearing.
Upon taking the bench, the judge will ask if parties have discussed the case and if a settlement was reached. If parties did not discuss, the judge may not proceed with a hearing. If an agreement was reached, the case may be dismissed or a consent agreement may be allowed through the court at the parties' request. If no agreement is reached, the hearing will proceed.
The judge will explain the procedure the parties will follow during the hearing. All persons (parties and witnesses) that will testify at the hearing will be sworn or affirmed. If there is an attorney present, the court will give counsel the option of swearing or affirming their client and witness(es).
The plaintiff has the burden to prove the defendant's liability to the court and the amount of damages. For this reason, the plaintiff will have the first opportunity to tell the court their side of the case and present evidence on their behalf. After the plaintiff has finished testifying, the defendant is allowed to cross-examine the plaintiff.
This means asking questions of the plaintiff concerning the testimony. The defendant should not make any additional statements or comments at this time. The plaintiff may offer any witness testimony they may have. This will be done by the plaintiff asking questions of the witness and the witness will answer to the court. The plaintiff should not ask leading questions. Leading questions suggests an answer, and is often answered by a yes or no. This only affirms what the plaintiff has stated in his or her question, and the witness adds nothing to the case by answering leading questions on direct. The witness' testimony is more credible when testifying in response to the question.Do not wait until the hearing to think about how you will word non leading questions. After the plaintiff completes questioning of each witness, the defendant may ask questions of the witness during cross-examination. Leading questions are permitted during cross-examination.
Any physical evidence presented to the court must be identified and must be shown to the opposing party before it is handed to the judge (showing evidence to the witness before the hearing is ideal). Before the plaintiff rests, the judge will ask which evidence that party wishes to enter into evidence. The judge will then ask if the opposing party has any objections. The judge will decide which evidence will be accepted according to the law. Once the court accepts an item into evidence, it becomes part of the court's file and will not be returned. You are responsible for making copies of your documents ahead of time. Providing the opposing party with a copy of the evidence is ideal.
Once the plaintiff has rested, the defendant will begin burden shifting, following the same procedures as the plaintiff. After the defendant has rested, each party will be given 5 minutes for closing arguments. This is where each side tries to convince the court to rule in their favor.
The judge may make a decision at the conclusion of the hearing, or the case may be taken under advisement. If the case is taken under advisement, a deputy clerk will prepare a written judgment and mail your copy according to the last address you have provided to the court. If represented by counsel, your copy of the judgment will be mailed to your attorney of record. Please do not call the court to inquire about the decision. The court will not provide this information over the telephone. Do not ask the judge to explain the judgment to you unless both parties are present. Never ask the judge to change the judgment. The decision is final. If you are unhappy with the outcome and reasonably believe you have sufficient merit, you may appeal.
Either party has the right to appeal the judgment of the Magistrate Court. The appeal is made to either the State or Superior Court of Lowndes County. An appeal, with the exception of dispossessories, must be made within 30 days from the date of judgment. To file an appeal, you must come to the Magistrate Court, fill out an appeal form, and pay the cost of $215. In addition, you may also incur Magistrate Court costs, if applicable. These costs must be paid in the form of cash, cashiers' check, or money order. The appeal fee of $215 is made payable to the appellate court. A firm check from an attorney is acceptable in all courts.
Appeals from a dispossessory action must be filed within 7 days from the date of judgment and require, in addition to the appeal costs, that any amounts of rent determined due by the Magistrate Court to be paid into the registry of the Superior Court at the time of appeal and all future rents must also be paid when due.
If a defendant fails to show at trial and a default judgment is issued, there is no appeal from a default judgment.