How To Take a Big Vendor To Small Claims and Win 171
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.'"
You have better odds in Small Claims Court (Score:5, Informative)
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
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!
Re:My understanding (Score:3, Informative)
Generally, if you act in a manner that makes it clear that you have accepted an agreement, then you've accepted. Signing a contract is just a form of proof. It shows that you have most likely read and understood the agreement.
The US has that too (Score:3, Informative)
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 minutes. filing fees are low, often just $20 or so.
What the dollar limit is varies by jurisdiction, but it tends to be a couple thousand dollars. So if your neighbour borrows your electric drill and destroys it, small claims court is the place you'd go to try and get him to pay if all else fails. However if he knocked down your house, well that would have to go to regular civil court to get what it was worth.
So such a thing does exist and I can't imagine that a company would, as claimed, "spare no expense" to defend themselves in one. Since damages would be capped by statute at a couple thousand bucks, it wouldn't make sense.
Re:Having been in a similar situation before... (Score:5, Informative)
And you're "correcting" a common misconception with a slightly less common one. You can't plead the Fifth to avoid civil liability. One can, however, plead the Fifth during any court proceeding, including a civil case, if it is possible that the testimony given could possibly subject the person making it to criminal prosecution.
As an example, a doctor being sued for malpractice could not refuse to testify-the issue is a civil, not a criminal, one. On the other hand, if a hospital administrator is summoned to court and was involved in a potentially criminal coverup of malpractice, (s)he certainly could plead the Fifth in such a situation, as the issue in that case is potentially criminal and not just civil.
Re:You have better odds in Small Claims Court (Score:3, Informative)
Depends on the laws in your state. In some states companies are REQUIRED to be represented by a lawyer.
Re:My understanding (Score:5, Informative)
The whole point of a small claims court is meant to be that it is for situations where employing a lawyer isn't reasonable. You have a claim of, say 500Euro and the company won't pay. A single hour of lawyer's time is going to cost more than that.
If you take it to the small claims court, the risk to you is extremely limited (in most places, just the nominal cost of registering the case + your time involved).
However, it seems like in Massachusetts at least, you still need to take lots of care. In other places, I understand that the judge has a duty to help the "little guy", overlook small mistakes and, for example, explain to you why your evidence can't be admitted.
Re:You have better odds in Small Claims Court (Score:3, Informative)
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".
Re:The only winning move. . . (Score:5, Informative)
She delivered a preponderance of evidence to show that she saw no license agreement and therefore was not bound to its terms.
1. Not on the box.
2. Not in the box in printed form.
3. Software didn't install enough to show the EULA.
4. Showed that other people have had the same problem.
Adding to this, she also logged her time spent on the phone to show that she made every effort to make it work.
Many people might say "hey, I understand point number 1. They would need a HUGE box! But why don't they include a printed EULA and why doesn't the EULA come up BEFORE it installs?" Simple. The slippery lawyers want to be able to change the EULA on the fly. It could be used to prove any number of things including the fact that you were able to install it since completion of the install would be followed by an EULA.
The article inexplicably fails to mention the failing product. Was that Adobe's idea? Was that the article's editor's idea? Useful information was omitted to prevent advertisers from pulling their ads I suspect. But, if I understand it correctly, there's a chance that this is a matter of public record. Anyone in Mass care to do a little digging to find out the details?
Re:You have better odds in Small Claims Court (Score:3, Informative)
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 attorney has a primary duty to their client, they can (theoretically, I don't know of it ever happening) be disbarred by failing to inform that party without a lawyer what is going on.
Without knowing the case, and reading the pleadings, I could not guess if what the grandparent post is claiming is appropriate behavior for opposing council or not.
Re:You have better odds in Small Claims Court (Score:5, Informative)
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]
Re:You have better odds in Small Claims Court (Score:3, Informative)
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 other side, but would potentially be difficult to prove).
Very likely, the lawyer wasn't being well paid by the defendant, and was exerting the bare minimum of representation for their client.
Re:You have better odds in Small Claims Court (Score:3, Informative)
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 total pain in the butt.
Plus, deposition as "hearsay" cannot always be brought into court on their own.
Of course, as you noted, sometimes you can simply refuse to answer a question under an objection under the rules of evidence, and the deposing lawyer is then forced to obtain either a resolution from a discovery commissioner, or suspend the deposition while they obtain a order to compel an answer. It's likely to piss off the lawyer, and make them look for more fun ways to make your life miserable, but there are cases where it might be the best option.
Like sacrificing your queen in chess... sometimes it might be the right thing to do, even though it's so unlikely to be the right thing that people will tell you definitively "it's never a good thing to do."
Re:They WILL spare expense.... (Score:1, Informative)
They won't.
Right -- sometimes just the summons will do.
Many years back, I got a rebuilt engine from a major chain. Short story -- the outfit they suggested for installation were screwups, but it worked in the end. Warranty was a year OR 10K miles. The vehicle was an extra, so got nearly no mileage. Some fifteen months later, with only about 6K miles, my daughter took it somewhere. After a stop, she got in , turned the radio all the way up and started off. The radio was so loud that she didn't notice she had left the 3-speed trans in second at freeway speed. Result -- blown engine.
I figured it was my loss, but a friend (a qualified A&P mechanic for United Airlines and who builds race engines in his spare time) said the engine, a Dodge 318 V8, shouldn't have blown even under those circumstances and that I should go after them.
So I did. I gave the shop his opinion and argued that the warranty was unfair -- that only mileage, not time, was a reason for engine wear. I ended up calling daily, sometimes more than once in a day, for over a month, getting blown off each time. It was always a case of the right person being in meetings or otherwise not available.
I finally said screw it and filled out the forms for SCC. The clerk told me I shouldn't list the store manager as defendant, but rather to go home and find out from the California secretary of state's office who the designated summons-receiver for the corporation was -- yeah, this was pre-internet,
I did so, went back and re-filed with the correct name. Inside of a few days, I got a very penitent call from the shop, whining that they thought this whole thing had been settled to my satisfaction weeks before, followed by a bunch of other BS and an invitation to come by the shop that evening for my replacement engine.
FWIW, the engine was $800 (long ago), so figure $400 in profit. I don't know how much aggravation they were willing to go through for that amount, but I suspect the shop manager and other employees (listed in my complaint) got some fairly sharp comments from on high about exactly how much company time should be spent on issues like this.
Why bother? (Score:3, Informative)
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.
Completely Untrue (Score:3, Informative)
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:The only winning move. . . (Score:5, Informative)
well, the EULA probably has the standard 'no warranty' terms. Adobe probably wanted to hide behind that to avoid the otherwise default position that you have to sell a functioning product; the plantiff showed that since it hadn't been displayed, it wasn't agreed to, and didn't count, leaving Adobe holding the bag for having sold a non-functioning product.
Re:My understanding (Score:2, Informative)
Re:What product and OS? (Score:3, Informative)
Re:Having been in a similar situation before... (Score:4, Informative)
One can plead the 5th at any time that one may legally implicate oneself in a criminal action.
1) If the question is highly relevant to the state's case, then at that point the person pleading the 5th will be taken into an ADA and have immunity papers drawn up for your part in the alleged action. Once they have been offered immunity for the action they are pleading the 5th against, they are no longer able to claim the 5th as they can no longer be implicated. If after all of this transpires, they were hiding behind the 5th and had no logical fear of self incrimination, they will be charged with contempt of court.
2) If the question is not highly relevant to the state's case OR the DA feels they can make a better case against the pleader, prepare for a nasty criminal investigation. Pleading the 5th is not an admission of committing a criminal act but it is a good jump off point for an investigator. One cannot be arrested for pleading the 5th, however detectives can still begin looking for the smoke and mirrors. Anything that is found by detectives most certainly will be used against the pleader.
Hopefully this helps your understanding of the 5th amendment to the United States Constitution as it is (IME) practiced. Been There, Done That (TM)
In California (Score:3, Informative)
Lawyers are not permitted in Small Claims Court.
Re:In California (Score:3, Informative)