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.'"
Having been in a similar situation before... (Score:5, Interesting)
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.
Re: (Score:2)
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.
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:Having been in a similar situation before... (Score:5, Interesting)
No, they do not have to explain why they are taking the fifth. As you say, that would defeat the purpose.
(unfortunately speaking from experience)
There have even been instances of people taking the fifth even though they *didn't* commit a criminal offense -- the point is that refusal to testify can't be used against you because they have no proof you did anything wrong. Personally, I now always refuse to talk to police, and take the fifth unless there's an extremely good reason. Another issue is that if you testify that you didn't do the thing in question, they might be able to use that as an admission of guilt of a totally unrelated charge. I don't know all the laws, how the heck am I supposed to know whether or not I'm admitting to some bullshit law from the 1840s that some DA wants to get me on because they're pissed that I didn't actually do anything wrong.
Re: (Score:2)
the point is that refusal to testify can't be used against you because they have no proof you did anything wrong.
The police can have tons of proof that you did something wrong.
The privilege still stands.
But you need to remember this one important qualification: "invoking the privilege can't be used against you - "by the state - in a court of law."
It doesn't mean you have become any less "a person of interest" or a suspect in the crime. It doesn't mean that others outside the courtroom won't draw their own
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)
Re: (Score:2)
Yay Poster! (Score:5, Funny)
It's a print link. Yay poster!
Re: (Score:2, Interesting)
Makes it 10 times (at least) easy to read. :P
Hopefully the OP started a new trend
Re: (Score:2)
He must be new here...
Re: (Score:2)
Not on a 24" widescreen monitor.
And no, I'm not going to resize my browser window.
Re:Yay Poster! (Score:4, Funny)
A two-page monitor (Score:2)
And no, I'm not going to resize my browser window.
Why not? That's what 1920x1080 was designed for, especially with a window manager's split screen support. It's called a "two-page monitor" for a reason. In Windows XP, click one window in the taskbar, Ctrl+right click another window, and choose Tile Vertically. In Windows 7, drag a window to the side of the screen.
Re: (Score:2)
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:You have better odds in Small Claims Court (Score:4, Insightful)
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.
Re: (Score:2)
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)
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
Re:You have better odds in Small Claims Court (Score:5, Interesting)
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!)
Re:You have better odds in Small Claims Court (Score:5, Insightful)
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:2)
The reason I want to write about it when it's all done is to help others with what to expect and be ready for. I am in a somewhat unique place where most people would do the opposite of what I'm doing. And this surprises the heck out of everyone I com
Re: (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 tot
Re: (Score:3, Insightful)
This was a consequence in my case too - a huge amount of stress and real, perhaps permanent, damage to my
Re: (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 a
Re: (Score:2)
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
Re: (Score:2)
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)
Re: (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".
Return the replacement copy (Score:2)
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)
Depends on the laws in your state. In some states companies are REQUIRED to be represented by a lawyer.
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: (Score:2)
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 company has to send?
I live in FL and looked into suing the company that sold me my laptop for violating the terms of the warranty they sent me (they claimed that the company that sold them the warranty services had gone bankrupt) and I found out that I had to sue them where they were headquartered (somewhere in Las Vegas IIRC). That effectively makes small claims court irrelevent, since it costs far too much in terms of time and travel to do so.
If the company is in bankruptcy, you should not have to sue them, you should be able to locate the bankruptcy case in Nevada and file a claim.
Once you locate the case, you will see a listed phone number for their attorney. You are not supposed to call the party that is in bankruptcy, but to call their lawyer.
Their attorney should send you a form to fill out, filling out the form and sending it in maybe the easiest chance of getting your money , or at least part of it.
If nobody is sending in claims, you may
Re: (Score:2)
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
Re:You have better odds in Small Claims Court (Score:4, Insightful)
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?
Re: (Score:2)
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.
Re: (Score:2)
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
Re: (Score:2)
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)
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.
Re: (Score:2)
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.
Re: (Score:2)
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.
Re: (Score:2)
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
Re: (Score:2)
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)
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)
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
Re: (Score:2)
Re: (Score:3, Interesting)
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)
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.
Re: (Score:3, Interesting)
Not necessarily. Sometimes it's massively advantageous to represent yourself. A very good example is the so-called "McLibel" case, where Helen Steel and Dave Morris defended themselves against a libel action by McDonalds http://en.wikipedia.org/wiki/McDonald's_Restaurants_v._Morris_%26_Steel [wikipedia.org]. They would have come out of it much worse off (financially and legally, probably) if they'd had representation.
Re: (Score:2)
Not necessarily. Sometimes it's massively advantageous to represent yourself. A very good example is the so-called "McLibel" case, where Helen Steel and Dave Morris defended themselves against a libel action by McDonalds http://en.wikipedia.org/wiki/McDonald's_Restaurants_v._Morris_%26_Steel [wikipedia.org]. They would have come out of it much worse off (financially and legally, probably) if they'd had representation.
I can't figure out from that article why they would have been worse off with representation. I have another example, though. My roommate once represented himself in a criminal case, cross-examined a police officer, and was able to prove the officer was lying, resulting in the case being thrown out. I don't recommend trying that unless you're really sharp, but he pulled it off.
Re: (Score:3, Interesting)
Er... I didn't even read the article really, before i linked to it! But i did follow the case while it was going. Apart from anything else, they would have been much worse off financially because they would have had to pay a vast amount for representation over what was the longest running trial in English history. If they'd been represented, it probably would have become financially impossible to continue with it for
Re: (Score:2)
It was a PR disaster for McDonalds at the time.
Re: (Score:2)
Really? Cool beans! But doesn't anyone who represent themselves have a fool for a client? ;)
Perhaps, but who's the bigger fool, the fool or the fool who follows him?
Qualifications (Score:5, Funny)
Good to know all you need is a 4 year bachelors in software design and 10 years in the industry to win a $1500 lawsuit! Keep up the good work.
Re: (Score:2)
Imagine 8 and 20 years... it would have been.. like... 3000$!!
Re: (Score:2)
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
They WILL spare expense.... (Score:4, Interesting)
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...
Re: (Score:2)
The fact that this is newsworthy is sad. (Score:5, Insightful)
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..."
Re: (Score:2)
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)
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.
Re: (Score:2)
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.
Re: (Score:2)
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
Re: (Score:2)
Like there are not enough real laws being broken... There's also something seriously wrong if this kind of thing happens frequently.
Bad article (Score:5, Insightful)
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)
Having taken people to small claims before... (Score:4, Insightful)
Taking them in and getting a judgement is the EASY part.
Actually getting your damages/awards from them is where it becomes tough.
Title should be "I took ...", not "How to ..." (Score:3, Insightful)
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.
The single most important thing about small claims (Score:2)
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)
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.
Contrapreferentum (Score:2)
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
Maybe (Score:2)
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)
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)
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)
Cost to litigate your claim is not the only factor (Score:2)
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.
This story is bullshit! (Score:3, Insightful)
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)
Lawyers are not permitted in Small Claims Court.
Re: (Score:3, Informative)
Poor article quality (Score:2)
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
Re: (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.
Re:My understanding (Score:5, Insightful)
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: (Score:3, Insightful)
Whilst selling you the film, they switch the film for a licence to view it.
Re: (Score:2, Informative)
Re: (Score:2)
Yes, the details.
What I'd like to see is to have small claims cases like this one made open source, so more people can take advantage of the legal system to influence the way the vendors we use treat us.
Maybe a small-claims wiki?
Re: (Score:2)
I would expect that you can find the details of this case, though the process and the actual records are probably quite arcane. Perhaps start by going to Law school or contacting a law
Re: (Score:3, Informative)
Re: (Score:2, Insightful)
In particular if you are a "software engineer" which to me means programmer.
The skills of system administration and programming are distinct, though related in some ways. Just because you can do one does not mean you can do the other. As an example I am a systems administrator and it would seem a successful one (my boss likes my work and I've had my job for many a year). However, I can't program. I do know the basics of programming, I understand the concepts fairly well actually and know the syntax of sever
Re: (Score:3, Interesting)
To put it into a car analogy;
System administrators know how to build roads to make it easier for vehicles to move around. Programmers know how to build vehicles that can use the roads.
You can have vehicles without decent roads, but the ride wouldn't be smooth. You can have roads without vehicles, but that would be pointless.
Programmers may not get the big picture of how all hardware and software interacts to form an instable computer system. System administrators don't get the big picture of how harware and
Re: (Score:2)
Unfortunately many programmers are problems because they seem to think that since they can program, that means they are good with computers in every way. After all, they write the software, how hard can the rest be?
It all depends on skill set and how good someone is at the skills they have. I'm a developer, but I used to be in IT (before WIndows NT) and I've run across IT guys that knew less about sys admin that I do, but they were crappy IT guys and should have been back on the help desk where they belonged.
Personally I hate systems administration and I'm perfectly willing to let someone else deal with it, and on the couple of occasions where IT screwed up my system and I couldn't get on the WAN or into VSS, I told
Re: (Score:2)
They can't troubleshoot even simple hardware problems, they get viruses on their system, they don't know how to set their OS to do what they want, etc
I have no doubt that is true, but any programmer who can't do these things is not qualified to be a software developer in the first place.
Re: (Score:2)
That's funny. While that's probably true much of the time, I'm a programmer who hates any kind of GUI design work. That's just not what I like to do, and I'm no good at it. It didn't used to be that way, and I have no idea what happened. I think that part of my brain died. I'd almost rather pull my own teeth than do it for someone else (my own stuff is a different matter because I don't care if it is really nice, as long as it works and doesn't hinder my ability to use it).
Maybe I hate it because it is so s
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: (Score:2)
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.
Forget the product, I want to know: what was the remedy? If the claim is just that the product is uninstallable, you would probably be suing for a refund, but then why would you have to prove the EULA didn't apply? That seems like something you would do if the product worked but had some sick license term like "Adobe owns all your data" and you were trying to get out of that.
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: (Score:2)
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.
Ah. That makes perfect sense, thanks.
Re: (Score:2)
Here in the UK, the retailer is liable for anything like this, and I'm pretty sure there's a European Directive to the same effect. I think manufacturers are liable for things like super bad business practices, but you can get the retailer for a much easier to prove breach of implied merchantability.
Ah yes, the standard European practice of assigning blame to any parties not actually at fault.
There is such a thing as negligence. If the retailers have a 'blink-blink-nod-nod' attitude towards unfair practices of the corporations whose products they resell, shouldn't they be held responsible, too? After all, surely Adobe would lose a chunk of revenue if suddenly they lost the brick-and-mortair retail?
Re: (Score:2)
OK, so who is "the company"? Surely, they don't have the entire board of directors, or executive staff sitting at the defendants table. They send one representative. And if they are smart, its a lawyer, or engineer with legal training and experience. And, absent a sympathetic judge, that experience will trump most plaintiff's limited skills.
Re: (Score:2)
Yeah, that was the WTF moment for me. 10 years in the industry, and she doesn't realize that PDF is an open standard with alternate implementations?