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How To Take a Big Vendor To Small Claims and Win 171

Posted by kdawson
from the microsoft-tax-refund dept.
snydeq writes "Gripe Line's Christina Tynan-Wood offers good news for those harboring grievances about faulty software or unfair licensing practices: it is in fact possible to take a big vendor to small claims court and win. But, as one woman's fight against Adobe demonstrates, detailed evidence and a deep understanding of the laws in question are essential to obtaining justice against big vendor lawyers. 'Evidence is the key factor,' explains one legal expert. 'Often the evidence people present does not show what they think it does. And they fail to make themselves aware of the rules of evidence so they can introduce any evidence they do have in court. These companies will have attorneys and those attorneys will use the rules of civil procedure to take advantage of your lack of knowledge.' Moreover, they will spare little expense no matter the magnitude of claims brought against them. 'The lawyer for Adobe tried an "end-user is stupid" argument,' explains the woman who took on Adobe over a software license she never had the privilege of agreeing to. 'But he gave that up when he learned I wasn't a lame-brain home computer user. I have a software engineering background and worked for Sun Microsystems and Fidelity Investments tech group.'"
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How To Take a Big Vendor To Small Claims and Win

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  • by CaptainNerdCave (982411) on Sunday May 30, 2010 @02:22AM (#32394916)

    It is in your best interest to have all/most of the evidence of your victimization in your control. Think of it as the company pleading the fifth amendment regarding the correspondence that proves their fault.

    Just like it's usually a waste of money to pay UPS or USPS to insure your package against their negligence.

    • by Surt (22457)

      Just like it's usually a waste of money to pay UPS or USPS to insure your package against their negligence.

      I don't understand what you're saying here. UPS/USPS damages packages all the time ... if I ship anything of value over $100, I always take insurance, and while I suppose it is likely that UPS prices the insurance to be a statistical loser, I'm pretty sure the USPS insurance is subsidized by stamp purchases, and even the UPS insurance may be subsidized by shipping costs. All I know is that I've been a long term winner with the insurance to the tune of a couple of thousand dollar now.

  • Yay Poster! (Score:5, Funny)

    by phantomcircuit (938963) on Sunday May 30, 2010 @02:22AM (#32394918) Homepage

    It's a print link. Yay poster!

  • IANAL but I have been told by many who have been in SCC that the company can not send an attorney to represent them. The point of small claims is to give the average person who feels they been taken advantage of at a fair amount of money (low) a chance to recover it. That is why a friend of mine pointed the fact out when a company he went against sent a lawyer and they were forced to send a representative other than an attorney. I've been told that pretty much anyone who WORKS for the company who isn't an attorney can represent them.


    I'm currently in an appeals court for a case I started in early 2009. I plan on writing about my experience to help out those EXACTLY in my situation. Although I've made many errors along the way, I've learned a lot on the fly and have been able to use both my errors and knowledge gained to help me out immensely. Everyone who knows about my case has come to the following conclusions:

    1a) The defendant's attorney saw I was representing myself without an attorney and figured ez win (pwned).
    1b) The defendant's attorney never took me seriously and figured ez win (pwned).
    2) The defendant's attorney figured that with the minimum amount of "proof" (evidence) she could successfully defend her client in the proceedings.
    3) The defendant's attorney doesn't like what their client has done and is in fact helping me out.
    4) The defendant's attorney is actually so bad as an attorney, that an unskilled/untrained/inexperienced person in law is able to beat her even though any other attorney with an average of .333 in case victories could have easily quashed my actions from the start.


    So now with an order in my favor, we're in the appellate court to see what they have to say about the case. I also have a subsequent ruling in my actions against the defendant in a related action. But none of it has been easy, though many made it seem like it would be. There are many other factors that have contributed to my success thus far, notably other attorney's in the court room who find my case interesting. One who broke it down to me: "you have no case." But they also gave me some advice that "might' have helped me out.

    Now in the appeals court, I am also representing myself. I had enough time and even requested an extension of time to complete my reply brief. As it turns out, it's not as easy to do. Sure, writing it was easy, nothing I haven't done before. But there was a very specific set of rules to follow and this is what took up time. With a page/word limit and a lot of rules, I would say that it's technicalities took more time than looking up laws and relevant cases. Understanding the laws are easy compared to writing the brief. I ended up taking a week off of work for a total of 10 consecutive days of about 12 hours a day minimum to complete it by the deadline.

    I might have gone a bit off course there but the point is, for those (relatively few) of us who have a little something upstairs, we can still successfully navigate the legal system. You just need a LOT of determination, a lot of time, a little bit of money, a good case/argument, and more than anything: patience. I've been told by court officials who took part or have helped in my case that the judge had allowed several things that most other judges wouldn't have. The reason I've been told is because of my inexperience and self-representation. We'll see how I fare in the appellate court, but I'm not worried about biting the bag because I now have 16 months under my belt of playing an attorney.*



    (* Might be worth mentioning why I didn't use an attorney. I know I'll need an attorney for the 2nd part of my actions (knowing the law isn't enough to favor me) so I am saving my money for that. But also because this is something that's huge in my life and means a lot to me, so there is nothing better worth dedicating myself to. And with a nick name like Socrates (I can't even get my friends to say my real name!) I have to represent! :)
    • 3) The defendant's attorney doesn't like what their client has done and is in fact helping me out.

      I'm not sure exactly what you mean by this, but coupled with your other points, sounds like the defendant at the least should actually be dismissing their attorney, if not suing them for malpractice, if not talking to the police about having you both charged with conspiring to pervert the course of justice (if your jurisdiction allows such for civil procedures).

      I'm all for 'sticking it to the man', but the fact you're in appeals, and boasting on Slashdot that the opposing legal counsel is "helping you out"... I'm not sure is such a good thing.

      • by Fluffeh (1273756)

        3) The defendant's attorney doesn't like what their client has done and is in fact helping me out.

        I'm all for 'sticking it to the man', but the fact you're in appeals, and boasting on Slashdot that the opposing legal counsel is "helping you out"... I'm not sure is such a good thing.

        I was thinking that too as I read it. Wouldn't it also be grounds for the person he is suing to request a mistrial, which would possibly result in overturning the original ruling?

        • Re: (Score:3, Informative)

          by snowgirl (978879)

          3) The defendant's attorney doesn't like what their client has done and is in fact helping me out.

          I'm all for 'sticking it to the man', but the fact you're in appeals, and boasting on Slashdot that the opposing legal counsel is "helping you out"... I'm not sure is such a good thing.

          I was thinking that too as I read it. Wouldn't it also be grounds for the person he is suing to request a mistrial, which would possibly result in overturning the original ruling?

          It's highly unlikely that anything done now could create a mistrial, as the trial has already been concluded.

          The appeals court could potentially return an order to the trial court to rehear the case, but that also is uncommon, and thus unlikely. The defendant would have to hire a different lawyer in order to make the claim that his first lawyer was either entirely incompetent (unlikely because they passed the bar) or they committed a gross violation of ethics (possible if they actually were assisting the o

      • Well, lets put it this way. The technicalities of the law in my state really says I have no chance what-so-ever of winning IF the attorney would have done more than the MINIMUM. Which is really what is needed in THIS case.

        The problem was, that I have so much overwhelming evidence to prove what I am claiming, that there is 1 tiny sub-section that allows my case to go forward. BUT, even THAT could have been blocked, had the attorney sufficiently brought forward enough arguments and it's proof (if true).

        That coupled with the defendant's blatant denial (perjury) of:

        n) That's not me in the video (clearly shows them). n) That's not my voice in the... (voice mail, recording device, video, etc...) n) That's not my phone, I don't even own a phone... n) I don't even know this person... (lol wtf right?)

        Believe me, there's no conspiring here. It just happens to be that I prepared for this case because I already knew there was trouble ahead (for more than a year). That's why, relatively few people would be able to do what I'm doing because I have so much "evidence" on my side. That's also why we have (my family, friends, others told about my case) come to those conclusions. Because as more than a few (and attorney's as well) have said, "I had no case." And under normal circumstances I wouldn't have a case, but I am VERY well prepared.

        Finally, please believe me, I'm not trying to come across as boasting but rather humble and willing to share this 'nightmare' (experience) with others so they can see it's NOT impossible to do what's "right." But also believe me, I am very proud of my accomplishments thus far. Most can't believe I've been able to get this far without an attorney's help in this type of case. As pointed out, my mistakes have been trying to surprise the attorney with evidence as they did to me (which turns out you can't do! It's not like it is on TV!!). But you learn and move on. Not being able to file other evidence because it's too much (75 pages). Having been told MANY times by the judge "you can't do this/that, you needed to give notice etc.

        So we'll find out how it goes. Most have told me that the appellate court is to review the technicalities of the court. Such as if there was an error in procedure. And that no new arguments can be presented, only that in record and in filings. But what it has done for me is the ability to explain my case in detail using laws and similar cases. This is something I wasn't able to do in court because of: nervousness, inexperience, everything just flying at me so fast, objections left and right which distracted me from my arguments etc. So now, in my brief I've been able to put it all together in order in a well formed argument, as I had originally intended to do.

        And to put out of doubt that we have ANY relation with each other, it seems the attorney was especially "mean" (dirty) during my deposition being that once again, I did it all myself. I am sure she was asking things and coming to conclusions that she couldn't legally do, but because I don't know the laws I couldn't object. Though she kept threatening me for not answering everything she asked such as where I work, company name, location, and hours that have NO RELEVANCE to my case.

        So no, the appellant's attorney isn't helping me out but almost any other "real" attorney in this state should have been able to have slam dunked this case... or at least they would have thought it was that easy not knowing what kind of person I am and what "evidence" I have (overwhelming). I also wouldn't have 1/10th of the stress if they were helping me out. (And less medical bills because of it too!)
        • by guyminuslife (1349809) on Sunday May 30, 2010 @04:36AM (#32395336)

          The technicalities of the law in my state really says I have no chance what-so-ever of winning IF the attorney would have done more than the MINIMUM. Which is really what is needed in THIS case.

          You really had better hope that the defendant doesn't read Slashdot. This is one reason why lawyers exist---to tell their clients to shut the fuck up about pending court cases.

        • Re: (Score:3, Informative)

          by snowgirl (978879)

          Though she kept threatening me for not answering everything she asked such as where I work, company name, location, and hours that have NO RELEVANCE to my case.

          Depositions typically allow for a wide range of questions that would not actually be admissible in direct court hearings (outside of California apparently). One of those things is relevance. They do not need to establish it in order to ask questions.

          This is because depositions are usually made without a judge present, and so getting a ruling about if a particular question is permissible or not is unwieldy... I mean, having to call up a discovery commissioner or whatever every other question would be a tot

        • Re: (Score:3, Insightful)

          So no, the appellant's attorney isn't helping me out but almost any other "real" attorney in this state should have been able to have slam dunked this case... or at least they would have thought it was that easy not knowing what kind of person I am and what "evidence" I have (overwhelming). I also wouldn't have 1/10th of the stress if they were helping me out. (And less medical bills because of it too!)

          This was a consequence in my case too - a huge amount of stress and real, perhaps permanent, damage to my

      • Re: (Score:3, Informative)

        by micheas (231635)

        IANAL , that being said. The law states that Lawyers in the US have a duty as officers of the court to look out for their clients interest and make sure that all parties without representation are fully aware of what is happening, and explain things to them in a manner that they understand what is going on.

        This is one of the reasons that lawyers hate going against pro per litigants. another reason, is that you cannot talk to the other side and get someone that knows what proper procedure is.

        So, while the a

        • by socz (1057222)
          Well, if it comes down to appropriate behavior... lol


          The attorney is rude to me, big surprise right? Here's some examples:

          n) On the first court hearing, case was moved to a different district. Attorney was nice to say "see you there." I asked what was going on? "This is just how it is." I didn't know THAT court didn't handle that case. No simple explanation like that.
          n) When the attorney "served" me with a response/evidence, it was during the hearing in front of the judge. That was allowed, which is
          • by micheas (231635)

            IANAL, but I have found If you have problem with not being served, or any other behavior, you need to tell the judge (and opposing council) and since this is the first time the judge has heard about it the judge is going to be of the attitude of let's fix this and move on, and this being the first time the judge has heard of it, may make take the attitude, mistakes happen.

            Once you have filed multiple notices to the court, and things are continuing to go wrong, you can ask for a corrective order, which can

    • Re: (Score:2, Interesting)

      I really don't understand why Adobe, or the store they bought it from, didn't refund the person's money under 'defective media' or something -- I mean, these days they can't really argue, for one, against the customer for potential piracy, since their products are easily available on the 'net. That is, why would someone even bother going through all the effort of obtaining a retail copy to then return it and go through all the hassle of attempting to get a 'freebie', especially when newer Adobe products 'p
      • Re: (Score:3, Informative)

        by DarthBart (640519)

        Because your average customer service monkey doesn't know anything about "product activation" or "key blacklisting" or anything like that. They just point to the big sign above "Customer Service/Returns" that says "Opened media may only returned for an exact replacement".

        • They just point to the big sign above "Customer Service/Returns" that says "Opened media may only returned for an exact replacement".

          There's a way to smurf with them even that way. Return it as defective and get a new copy. Return that copy and get a third copy. Rinse and repeat, establish a pattern of defective copies, and watch the store stop carrying that title due to its abnormal defect rate.

    • Re: (Score:3, Informative)

      by Mr. Freeman (933986)
      "I have been told by many who have been in SCC that the company can not send an attorney to represent them. "

      Depends on the laws in your state. In some states companies are REQUIRED to be represented by a lawyer.
      • by micheas (231635) on Sunday May 30, 2010 @05:12AM (#32395406) Homepage Journal

        IANAL, but In almost all -- if not all states if a company is in small claims court they must send one of the following:

        The owner (if a sole proprietorship)
        A general partner (if a partnership)
        An officer of the company (If a corporation or a form of partnership that has officers)
        or a regular employee of the company.

        The last one means that a company cannot hire an attorney to go to court, but if they have an attorney on staff that employee can go to court for the company. Here is a basic overview from the California courts:

        http://www.courtinfo.ca.gov/selfhelp/smallclaims/scbasics.htm#whogoes [ca.gov]

    • by AK Marc (707885)
      IANAL but I have been told by many who have been in SCC that the company can not send an attorney to represent them.

      If you sue a person, they may or may not be able to bring a lawyer, depending on the location. However, if you sue a company, then they are almost required by law to send an attorney. The "company" can't show up in person, so whoever does show up is representing someone else in a matter of law, so they must be licensed to practice law on behalf of someone else. It might be different wher
    • by snowgirl (978879) on Sunday May 30, 2010 @05:21AM (#32395436) Journal

      I had an argument (a.k.a. flamewar) with a guy recently here on slashdot about the necessity of lawyers.

      He seemed to simply reject the idea that the law was complicated enough to require a specialized caste of individuals. He kept arguing that a layperson should be able to accomplish legal work without resorting to a lawyer.

      I appreciate your account so much, because it provides a good amount of evidence to back up my claim: the law is that complicated, and while a layperson could do it, they have to spend a lot of time and effort on the matter.

      Cases are not as easy as walking in and talking to the judge.

      We pay lawyers so well to do this stuff, because they have less ramp-up time than we do.

      On another note, yeah, a lot of lawyers are pretty piss poor at representing their clients in court. I remember one judge berating a lawyer in a restraining order case for attempting to make an argument directly against the New York Times prior restraint precedent. I suppose you get what you pay for when you hire a budget lawyer?

      • by bhtooefr (649901)

        Myself, I feel that the law should be simple enough to not need lawyers.

        And, what about companies? Have the entire list of employees available to the courts. An employee is selected at random from that list (so you can't have a CEO that's a lawyer in disguise, unless you require that every employee of your company, all the way down to the janitorial staff, is a lawyer in disguise.)

        That method has the potential to be less fair on the individual case level, but more fair overall.

        • by snowgirl (978879)

          And, what about companies? Have the entire list of employees available to the courts. An employee is selected at random from that list (so you can't have a CEO that's a lawyer in disguise, unless you require that every employee of your company, all the way down to the janitorial staff, is a lawyer in disguise.)

          You don't need the entire list. As lawyers have to pass the bar exam, and be registered in nearly every state in order to practice law. In all but two states, they also have to obtain a J.D. in order to even take the bar exam.

          So, it would be sufficient for anyone attempting to represent a company in small claims to submit their education qualifications and bar status under penalty of perjury. It would take one stupid lawyer to put down that they did not meet this criteria when they did... it's pretty muc

      • by Surt (22457)

        Certainly reality rules in your favor, the law IS too complicated for the layperson to use it.

        In the ideal, however, the law would be simple and the tool of anyone who needed its protection.

        • Re: (Score:3, Insightful)

          by snowgirl (978879)

          Certainly reality rules in your favor, the law IS too complicated for the layperson to use it.

          In the ideal, however, the law would be simple and the tool of anyone who needed its protection.

          While I agree that it is fundamentally an ideal; I think it is not possible for a legal system to be sufficiently comprehensive without devolving into the need for specialized individuals. Even the Jewish concept of Noatic Law for the gentiles is complicated enough to draw out the distinction between justified and unjustified homicide.

          • by Surt (22457)

            I don't think the difference between justified and unjustified homicide is in itself complicated enough to require lawyers. The law is enormously more complicated than it needs to be mainly in that it has devolved into answering too many specifics, and not leaving enough responsibility for rationality in the hands of judges and juries.

    • by blantonl (784786)

      3) The defendant's attorney doesn't like what their client has done and is in fact helping me out.

      When I read this, my only thoughts were... Hook, Line, and Sinker.

      • by socz (1057222)
        hah! Does it really sound that bad? I mean I know it would sound bad taken out of context, but believe me that attorney has done me NO favors. If anything, they've tried to 'win' their case by using my lack of knowledge and representation.

        Everyone has said "no they aren't helping you out, they just suck as an attorney." I say that because most people agree that what I'm fighting for and it's reasons are right, and anyone representing the defendant has to definitely check their "morals" at the door. And t
    • I've been in a similar situation - launching a Supreme Court action against a much larger entity with much deeper pockets. At first I used a lawyer but after a while I realized that they didn't seem to know what they were doing - a big hint was that their comments tended to become self-contradictory over time. A second was that on occasion they would do things in such as way as to serve their own interest ahead of mine, e.g., rather than just saying they couldn't do the thing I asked for they did it in such

  • Tribunal (Score:4, Interesting)

    by WillKemp (1338605) on Sunday May 30, 2010 @02:46AM (#32394986) Homepage

    We're lucky here in Australia - or at least in the states that i know about - because we have small claims (or equivalent) tribunals. The rules of evidence don't apply and the parties aren't necessarily allowed representation by a lawyer (particularly if the other party can argue convincingly that it would disadvantage them - which shouldn't be too hard).

    In all courts, however, the judge (or equivalent) has an obligation to assist anyone who's representing themselves.

    • The US has that too (Score:3, Informative)

      by Sycraft-fu (314770)

      All jurisdictions that I know about have a small claims court. Any claim under a certain dollar amount goes there. There's no jury, just the judge, and normally no lawyers. The trials are not conducted by all the rules of normal trials because it is just two people settling a dispute. The TV court shows like Judge Judy are such a court. Normal rules of evidence, testimony, and so on don't apply and the judge often plays a fairly active roll in questioning. The trials are usually short, lasting only a few mi

      • Sometimes it would. Damages for one case might be capped, but if they think it could lead to a class-action or other large suit they could well spend more than the maximum damages defending.
        • Re: (Score:3, Interesting)

          by micheas (231635)

          Sometimes it would. Damages for one case might be capped, but if they think it could lead to a class-action or other large suit they could well spend more than the maximum damages defending.

          View the US law as sort of the reverse of overloading variables in a programming language.

          Small claims must do what the county court says.

          The county court must do as the appeals court says.

          The appeals court must do what the state supreme court says,

          The state supreme court must do what the US supreme court says.

          As long as court does not go against a court above it, it can interpret the law as it sees fit, to make the law practical.

          So, nobody can use a small claims court decision for anything other than a tem

      • 15 minutes to Wapner (Score:3, Interesting)

        by tepples (727027)

        The TV court shows like Judge Judy are such a court.

        Game shows like The People's Court and Judge Judy technically aren't small-claims court; they're binding arbitration held on a set that looks like an idealized small-claims courtroom.

  • by Hadlock (143607) on Sunday May 30, 2010 @02:47AM (#32394988) Homepage Journal

    But he [the attorney for big corp] gave that up when he learned I wasn't a lame-brain home computer user. I have a software engineering background and worked for Sun Microsystems and Fidelity Investments tech group

    Good to know all you need is a 4 year bachelors in software design and 10 years in the industry to win a $1500 lawsuit! Keep up the good work.

    • by Korbeau (913903)

      Imagine 8 and 20 years... it would have been.. like... 3000$!!

    • by Kjella (173770)

      Yeah... I wish these stories would come with an estimated hourly wage by any winnings minus any costs and fees divided by the number of hours you had to work for it. Some people are like "I saved $200, so I saved $200" and I say "And you spent a full work week getting it." and they're like "So?" Yeah you get that extra crispy feeling of revenge but my experience is in such a process you end up spending a lot of your own time that you're never going to get compensated for. I have been a consultant for quite

  • by Itninja (937614) on Sunday May 30, 2010 @03:04AM (#32395058) Homepage
    TFA makes it sound as though a corp will send a $400/hr legal team across the country for a $250 claim:

    Moreover, they will spare little expense no matter the magnitude of claims brought against them...

    They won't. I had a dispute with Dell a few years back over a part they insisted I purchased (I hadn't). Spent nearly a year writing letters, insisting I did not purchase the item. Eventually they sent me to collections. I had had enough and filed a SCC action. Within three weeks the charges were reversed, the collection agency was called off, and they sent me a check to cover 'credit repair costs'. No lawyers, no courtroom appearances, no nothing...

    • by AusIV (950840)
      This was my experience. I had a dispute with T-Mobile a while back, where an employee had made me a promise before I entered my contract, and the company subsequently refused to honor it. They tried to claim that the employee had no right to offer such a promise, but I argued that I wouldn't have entered the contract if she hadn't. They didn't care, because I had no proof of the promise. I went back to that store with a recorder hidden in my pocket and talked to the employee who made the promise (I checked
  • by MindlessAutomata (1282944) on Sunday May 30, 2010 @03:05AM (#32395064)

    The fact that this is newsworthy and the law is such an enigmatic set of rules and ritual demonstrate just how flawed our democratic system is. How can you call anything remotely resembling justice if the playing field is so uneven that it's newsworthy that someone was able to take a big corporation to small claims court and win? Police often say that ignorance of the law is no excuse, despite very frequently either flat-out lying about what the law is or misunderstanding it themselves--remember, they aren't lawyers, and lawyers often get it wrong too because it's a convoluted jumbled mess of precedent and sometimes vague statutes. The law is a giant, incomprehensible tangle of mumbo-jumbo, with legal precedents being treated like magic spells (uttered in Latin, no less). And with this structure, who wins? Why, the ones with the resources to hire experts...!

    In the words of a certain insanely underrated and clever kid's cartoon show from the 90's (Rocko's Modern Life): "You can't fight City Hall! You can't fight corporate America, they are big and we are small, you can't fight City Hall..."

    • Apparently, the rules are different in small claims court, but I'm willing to bet the odds are well against you still.

      • Re: (Score:3, Insightful)

        by socz (1057222)
        As stated in my elsewhere in my post, it's not that the rules are against YOU, it's just that you have to be able to use/follow the rules.

        In my case, I have overwhelming evidence. It's not that it favors ME, but rather proves that EVERYTHING I've said is true and consequently everything the defendant has said is a lie. As long the person filing the action has actual evidence, and there's good reason for what they're asking, they should be able to win.

        But if you're like most people and show up with not
        • Re: (Score:3, Insightful)

          Yes, but the problem is that, by nature, it's still much harder for you, a lone individual, to chase this down, then it is a monolithic corporation.

          Additionally, it's much worse in regular court.

        • by mpe (36238)
          But if you're like most people and show up with nothing (this actually happened in many cases I witnessed while waiting to be called), then you can't expect to win against someone who shows up prepared.

          If your opponent shows up with nothing (or dosn't show up at all) you don't need to be very prepared to beat them. Which may well mean that lawyers representing corporates in such courts typically show up with the bare minimum to win an uncontested case.
    • by mpe (36238)
      Police often say that ignorance of the law is no excuse, despite very frequently either flat-out lying about what the law is or misunderstanding it themselves

      These being people who's job is law enforcement makes this a serious problem.

      remember, they aren't lawyers, and lawyers often get it wrong too because it's a convoluted jumbled mess of precedent and sometimes vague statutes. The law is a giant, incomprehensible tangle of mumbo-jumbo, with legal precedents being treated like magic spells (uttered in
  • Bad article (Score:5, Insightful)

    by Mr. Freeman (933986) on Sunday May 30, 2010 @04:00AM (#32395232)
    This article is completely horrible. There's absolutely NO description about how EXACTLY this person won against adobe. All the advice given is "be prepared" and "research the law". Well no fucking shit, of you should read up on the law and be prepared when going to court. That's the entire fucking point.

    What tactics did she use? What the fuck is an "end user is stupid argument"? What piece of the law did she use to win? What did she argue made the license null and void?

    This article doesn't give me any hope about winning lawsuits against big tech companies at all. It's actually quite discouraging. There's no real information in the article which leads me to believe that perhaps this was actually a fluke and this person won due to something stupid. (i.e. the lawyer didn't show up to court because he mismarked his calendar.)
    • Re: (Score:2, Insightful)

      by rdwulfe (890032)
      Agreed. This should be titled 'Someone goes to court and wins', rather than 'how to..' anything.
  • by Chas (5144) on Sunday May 30, 2010 @04:13AM (#32395278) Homepage Journal

    Taking them in and getting a judgement is the EASY part.
    Actually getting your damages/awards from them is where it becomes tough.

  • by the bluebrain (443451) on Sunday May 30, 2010 @04:41AM (#32395346)

    There are two points I take exception to:
    (1) The title of this post, which should read "I Took a Big Vendor To Small Claims and Won". The product isn't named. The OS isn't named. The instructions from tech support aren't given. All it really says is "Oh yay it isn't easy and you have to be precise." You have to bring ample evidence to court and make yourself aware of how it will be interpreted? Oh my.
    (2) The penultimate sentence: "Needless to say, I have not bought any other Adobe products. Even opening a PDF makes me nervous!" Now I'm not exactly the grand proselytizer of Adobe products - but I am aware that a large number of people are using their products professionally day in day out. This blanket statement implying that "Adobe == shit" just casts, to me, a rather dark shadow on the not-being-a-lame-brain bit further up.

  • Is to understand the rules of examination (asking questions). Basically, you need to introduce evidence via direct examination (of your own witnesses, the hardest thing in all trials, even for lawyers) and cross (of opposing party and their witnesses).

    Google this, especially direct, which requires both laying a foundation and does not allow leading questions, and you'll have mastered the hardest of all trial skills.

    It is also helpful to have the law and/or facts on your side.

    Good luck!

    IAALBNYATDNCLA

  • Why bother? (Score:3, Informative)

    by devent (1627873) on Sunday May 30, 2010 @06:55AM (#32395776) Homepage
    Why you people bother with EULAs in the first place? Now, I don't know with product it was but since the woman doesn't suffer any business loss I would think it was just Adobe Photoshop or something else. I didn't agreed to any kind of EULA for over a year and I will certainly not in the foreseeable future. Why? Because I'm using Free Software and there are plenty of it available. As a side effect, these costs you nothing, too.

    Now, granted, someone who needs a software to do his work maybe needs to buy a copy of Photoshop or MS Office. But 99% of the people out there just don't need it. Save the EULA BS and save your money. The last time I red an EULA I just couldn't agree to it because it's just so full of BS; how can you agree to any EULA and pay them money for it at the same time? You have an alternative, maybe not always, but often.
    • IANAL. The whole EULA thing brings to mind something in learned from a lawyer, which is the principle of contrapreferentum. This may only apply in Canada, and once again IANAL and I am not giving legal advice. The short version is this...

      There was once a case between an insurance company and a man. The man had signed a contract with the company and the company was interpreting part of the contract in a way that was disadvantageous to the man. Essentially the court ruled that the contract was so difficult f

  • I suspect that the cost of defense in a small claims case may exceed any potential loss. I believe my state has a $2500 cap on small claims. There is no way to send a lawyer here and pay for travel and hotels in order to defend against a trivial case.
    My fear would be in the difficulty in actually collecting the sum once victory is established. Frankly there are many times when I have good reason to file small cases but I do not as the system is so scr

  • Completely Untrue (Score:3, Informative)

    by Anonymous Coward on Sunday May 30, 2010 @07:23AM (#32395888)

    This story is completely untrue and is using a single example to claim that all cases are like this. In most areas, the court papers are under $100 (something like $25 to $50) for small claims. You do not need a lawyer. There's no reason to even talk with one. Most of the time, companies will settle with you, especially if they do not have a corporate headquarters anywhere near you. For example, Toyota Financial and I had a disagreement over $250, not a lot of money, but the principal of the matter was important to me. Hotels in my area cost about $250 a night + rental car + 3 meals/day + flight + wages = it costs way more money to just figure out the issue and solve it than to send a lawyer to represent your company over $250. As soon as I called their legal department and said I was on my way to the court house, they were incredibly interested in helping me out. Toyota is not the first. I've had to threaten two other companies with law suits. None of them have gone farther than a call with the legal department.

    • Re: (Score:2, Insightful)

      by Anti Cheat (1749344)

      I have to agree with the above sentiment. The story just doesn't add up and the lack of detail and rambling content makes me very leery that what went on even really happened at all. This article is way to complicated and simply flies in the face of normal business. I have also dealt with large companies and small. I have even been in small claims court. The way this person describes the actions and how things unfolded simply flies in the face of normal small claims court proceedings and simply doesn't ring

    • Re: (Score:3, Insightful)

      by DaMattster (977781)
      A good point has been raised about the lack of detail. If David really bring down Goliath, one would think that the author would have included a reference to her case so everyone could read of the victory.
    • They may or may not settle with you to avoid the cost of court. If they think settling with you will give rise to a large number of similar claims then they may litigate just to act as a deterrent to other possible claimants.

  • by Khyber (864651) <techkitsune@gmail.com> on Sunday May 30, 2010 @12:25PM (#32397652) Homepage Journal

    Let me explain how:

    Small claims court - ALMOST UNIVERSALLY WILL NO LAWYERS BE ALLOWED IN ONE IN THE USA.

    "These companies will have attorneys and those attorneys will use the rules of civil procedure to take advantage of your lack of knowledge"

    So much for that person being a legal expert. No wonder they're not named, as they'd be found and likely disciplined by the real bar.

  • In California (Score:3, Informative)

    by fast turtle (1118037) on Sunday May 30, 2010 @12:35PM (#32397736) Journal

    Lawyers are not permitted in Small Claims Court.

    • Re: (Score:3, Informative)

      by Whuffo (1043790)
      You're not allowed to have a lawyer represent you in Small Claims Court - that's different from "no lawyers allowed". For small items where the amount asked for is less than the corporation would spend on a defense - you're almost certain to receive a full settlement. But if it's big money then expect the corporation to work to have the case moved to a "real" court.
  • While the overall story might have been good if it had been described in more detail, this article is really too short and of too poor quality to hit the /. front page.

    The description of the arguments in the case is too vague to provide any real value. Instead the author tries to generalize on a lot of topics which clearly are outside his field of expertise.

    Improve the story, and re-post it. Or send your notes to Ars Technica and let them do the actual article.

    - Jesper

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