SMALL CLAIMS COURTS
Small claims courts, designed to provide a fast, efficient and inexpensive way to resolve claims of individuals against merchants or large corporations, are potentially a great resource to consumers. They are one of the best ways for consumers to settle disputes with a dealer, service station, repair shop, garage, or auto manufacturer.
Small claims court is just what it sounds like--a forum for claims not large enough to warrant a full-scale trial, yet worthy of argument before a judge. Virtually every state has small claims courts, each generally having county-wide jurisdiction. Claims limits typically range from $1,000-$7,500, which means that this is not the appropriate court to seek a buyback or replacement of a lemon, or if you are seeking considerable damages and expenses. If you win a buyback through arbitration, however, you are free to file for reimbursement of incidental expenses such as towing, lodging or rental cars through small claims court, since these claims are not subject to arbitration and will usually be under the claims limit.
A major advantage to small claims court is that they are so simple you don't have to hire a lawyer to represent you; in fact, some courts do not permit lawyers. Even if the auto maker brings in high-priced lawyers to fight your claim, do not be intimidated or discouraged. Smallclaims court is meant to provide an informal, simple method of justice where consumers can easily explain their problem and the remedy they seek. The judge may help present the case by asking appropriate questions. Formal courtroom procedures and the use of legal rule are usually ignored, providing an informal atmosphere in which consumers making claims can more easily talk out their problems before the judge.
Information and other resources are available for the consumer to use in preparing to go to small claims court. A few courts and many consumer groups and agencies publish guides or consumer manuals on using small claims courts, with emphasis on the local procedures involved. Even though a lawyer is usually not necessary in a small claims court suit, some legal assistance or advice may be helpful. Free legal help may be obtained from law students who participate in a legal clinic, such as the Law Students in Court Program in Washington DC. Call the nearest law school to find out whether there is such a program in your area. Often, legal assistance is available from neighborhood legal service organizations or legal aid societies which are set up to help low-income or minority groups. Where legal assistance is necessary, some courts will provide indigent consumers with a lawyer at the consumer's request.PROCEDURESFILING A COMPLAINTSmall claims courts are located in county or other local courthouses in your state. The plaintiff (person who is suing) usually must file suit in the area or district where the defendant (person being sued) lives, works or has his or her place of business; for example, where the dealership or repair shop is located.
The small claims court in your area will be listed in the telephone book under Courts for either your city or county government, or there may be a general information number for Courts.After finding the court in your area, ask to speak to the clerk of the small claims court. Tell the clerk that you wish to file a complaint. Ask the clerk whether the court can handle your kind of case and whether it has jurisdiction over the party (or parties) you wish to sue. As a general rule, the defendant must live, work or do business in the court's territory. Since automobile manufacturers do business in all areas of the country, they can be sued in just about every small claims court. Thus, choose the court in an area where the dealership is located when suing the dealer and manufacturer.
The clerk can assist in filling out the necessary form. The basic and perhaps only form you need to fill out is the complaint. Many small claims courts will have a sample, filled out, complaint available. The complaint includes your name and address, the names and addresses of the person whom you are suing, the amount of your claim and the reason for your suit.
The amount of your claim should include the cost of repair in the case of a defect or accident and the overcharge in the case of a fraudulent or incomplete repair, as well as any consequential damages arising out of the problem. For example, suppose a repair shop charged you $200 for a tune-up which it didn't do. In the meantime you had to rent a car for $75 and then you paid another mechanic to perform the tune-up for $250, then you should sue for $275 ($200 to get back what you paid for no tune- up and $75 for the rental car while it was in the first shop; do not ask for the $250 because that is what you are paying the honest mechanic for the tune-up actually performed. If fraud is involved, you may be entitled to triple damages.
Be certain the business name of the organization you are suing (which you write on the complaint) is the official legal title. John's GM Shop may not be enough; it may be legally registered as John Brown's General Motors Showroom, Inc. Some courts will dismiss the suit unless the company is identified in the complaint exactly as it is registered for legal purposes. Ask the court clerk whether the exact legal name is required, and, if so, how to find the correct name. This information can usually be checked with the city or county clerk, or the secretary of state. See if the dealership or repair shop has an operating license posted on an office wall with the legal name on it. Auto companies are required to have an agent for service of process which may be the Secretary of State in which you live if they do not name an agent. Most auto companies use CT Corporation Systems for their agent for service of process.
Some states such as New York have a bad restriction on small claims court jurisdiction - - i.e., a business can only be sued in a county in which it has a physical place of business. To get around this, a consumer could sue a dealer which has a place of business in the county and the manufacturer. Or the consumer could sue in regular civil court where the long arm statute of service on out of state corporation applies.
When you fill out the complaint, be precise. State exactly what part of the engine, for example, was defective or malfunctioned. Attach a copy of any repair bill to the complaint as well as any Technical Service Bulletin that covers the problem which was repaired. This will encourage an auto company to settle the case. The clerk will give you a summons to be completed with the complaint. A summons is the official notification of the case delivered to the party you are suing, which will be sent to the defendant after you have filed your complaint.
After you fill out the forms, you will pay a small filing fee which usually will be returned if you win since the losing party pays it. The clerk will then give you a copy of the forms and usually a "docket number" (identifying the case) and a date for the hearing of your case. The hearing date is usually scheduled for 2-8 weeks from the date of filing. Some courts notify plaintiffs by mail telling them whether the defendant was served with the summons. If the defendant cannot be located, you are responsible for finding the address where they can be served.PREPARING YOUR CASETry to attend a session of the court to learn the procedure so you will know what to expect and how to prepare for your own hearing. At least come to court early on the hearing date and observe the cases that come up before yours, in order to become more at ease with the procedure.
In small claims court, a consumer can do a good job by going before the judge and telling the story of his or her complaint from the beginning. To do this easily, write down the history of your complaint. Arrange the events in the order they occurred, checking the dates. Pull together all the documents related to your claim, such as written estimates, repair orders and canceled checks. Also bring physical evidence (broken or defective parts) if possible.
Where possible, get written statements or affidavits that support your complaint. one example is a statement in writing from a car mechanic describing what is wrong with the car and why it would be considered a defect as opposed to normal wear and tear. If the mechanic is willing, have it notarized by a notary public. This evidence lends credibility to your case. Another piece of helpful evidence would be a report from a diagnostic inspection center in the form of a computer printout or checklist, listing what is wrong with the vehicle. If your case involves a manufacturing or design defect, obtain a search of technical service bulletins (TSBs), or consumer complaints similar to yours from the National Highway Traffic Safety Administration to help build your case. Although the court may admit these as a federal record, try to obtain a copy of any TSB from a local dealer. You may order them from NHTSA's Technical Information Service,at 202-366-2768 after you identify them on its Website. Be advised that NHTSA may take a few weeks to provide documents.
The vast majority of small claims suits are decided without witnesses. If you do bring witnesses, make arrangements with them prior to the hearing. It is best to get a witness to testify at the hearing on a voluntary basis rather than by court order. If the witness is not willing to come to the hearing, ask the witness to make a written statement or affidavit indicating his or her knowledge of the case.
In the rare case where success depends upon a witness actually appearing in court, and the witness will not come voluntarily, check with the court clerk to see if the small claims court has subpoena power (ability to order a witness to appear in court). For example, a mechanic at the dealership who repaired the car admitted that the failure of a part was due to a manufacturing defect. Since the dealer will not let the mechanic appear at the hearing, a subpoena is the only way to get the mechanic in court to tell the story. There is a beneficial side-effect of a subpoena issued in such a case; not only will you win if the mechanic testifies, but the dealer loses a mechanic for the day. Confronted with such a situation, the dealer may very well offer to settle out of court after the subpoena arrives.SETTLEMENTMany small claims suits are settled out of court before they can come to trial. once a dealer, garage or manufacturer sees that a consumer means business by going to small claims court or beyond, he or she frequently agrees to meet the consumer's demands. You can even settle in the courtroom on the day of the hearing before court actually begins. Some courts have clerks, other assistants or even judges available to expedite this settlement process before trial.
If you want to settle, be prepared to bargain. Make sure you understand all the terms before you settle and get the terms of the settlement in writing. Do not settle for anything you feel is unfair. Upon settlement, file a copy signed by both parties with the court so that the settlement can be enforced by law. If the court allows, arrange to appear in court to clarify with the judge the settlement terms. Try to negotiate reimbursement of court costs as part of the settlement.THE HEARINGIf there is no settlement, you will have your day in court. Most small claims courts call the roll of cases and parties at the beginning before taking each case in order. If a party is late or does not appear, the case can be decided immediately in favor of the party who is present, so be on time.
When the clerk calls your case, the judge will ask each party to tell his or her side of the story. In the course of presenting your case, give the court copies of any written evidence you have. If you have any witnesses, call them before the judge and ask them to tell what they know. The judge will not expect you to have any legal knowledge; he or she will merely ask you to state the facts as clearly and concisely as you can. The judge will ask questions to clarify anything that was not clearly presented. The other party will then be given an opportunity to present his or her side. Many small claims courts have cross examination of witnesses only, not the parties. The following suggestions will help you present your case at the hearing:
- Rehearse your presentation before going to court. If you know your case well, you should be able to present the facts easily and with confidence.
- Provide the court and the auto manufacturer's representative with a copy of each repair order (with canceled check attached) as you describe each repair attempt to the judge. Label each submission with corresponding exhibit letters (A,B,C, etc.) so they can be easily referenced.
- Bring copies of supporting documentation of defects or problems with your car, including recalls, service bulletins, studies, articles, fact sheets, and similar consumer complaints to present to the judge and the opposing party. Label each with exhibit letters as well.
- Be as organized as possible. Have a summary listing of each breakdown or repair, together with the relevant date and mileage indicated in each entry. Repair information should include the garage's diagnosis, the repair work actually done, the repair order number, and the amount you paid for each repair.
- When asked questions during the hearing, take a moment to think about how to respond, especially if the other party is questioning you. They may try to phrase their questions so that the only reply you can give will sound damaging. Rephrase the question to expose this tactic and respond accordingly.
ARBITRATIONSome court systems provide for arbitration instead of or in addition to small claims courts. Both are very similar, with the main difference being that in arbitration, one goes before an arbitrator rather than a judge
The concept of resolving consumer complaints outside of the courtroom is becoming more and more popular across the country. The superior court of Santa Clara County in California has court-ordered arbitration. Three hundred and fifty lawyers arbitrate cases in their respective areas of expertise. The program, run according to the rules of the California Arbitration Practice Guide, has been operating since 1982 at no cost to the consumer. Many other counties in California have adopted programs similar to this one.COLLECTING THE JUDGMENTUnfortunately, some consumers who win in small claims court do not always collect the full amount of the award. Some defendants refuse to pay or simply do not have sufficient funds to pay. The court is not responsible for the actual collection of judgments but it can help enforce the judgment. In most auto cases, the winning consumer has little difficulty in collecting since the losing party is frequently a multi-billion dollar auto company or well-to-do auto dealer that can scarcely plead lack of funds to pay the judgment.
At the hearing, ask the judge to order the entire amount to be paid at one time in a single payment. If notification is by mail, contact the defendant and ask for the money. If the defendant does not pay within a reasonable time (2-3 weeks), go back to the small claims court clerk. Fill out the necessary forms, and the clerk will tell you how to get a sheriff or marshall to collect the money owed by the defendant. The cost of a sheriff or marshall can be added to your judgment. File with the clerk a list of all the costs accumulated in trying to collect the judgment.
If the sheriff or marshal cannot collect the money owed to you, ask the court clerk for information about what to do next. If an oral examination of the defendant is possible, request a hearing before a judge to decide what action can be taken to make the defendant pay the judgment. At the hearing, you can find out >whether or not the defendant actually has the money to pay you. If he or she does have the money, request an attachment on the defendant's wages, money in a bank account, or other property until you have collected >your money. The clerk can again help you fill out the necessary forms.SUING WITHOUT A LAWYEREven where nearby small claims courts do exist, some consumers have chosen to file suit in a higher court because the jurisdictional amount (limit on the amount you can recover in a given court) is too low in small claims court. In order to avoid legal fees, some consumers have pursued the case on their own, without hiring a lawyer. Others did so because they couldn't find a lawyer willing to take on an auto manufacturer.
One example is Toby Cagan who took Chrysler Corporation to court and won--without a lawyer--over her defective Dodge Aspen. She had complained over and over again about her "lemon" to Chrysler dealers and to the manufacturer, but Chrysler treated her complaints callously--responding with form letters and rude, reluctant service.
Before Cagan signed for her Aspen, she took a test-drive and found many problems with the car, including difficult steering, sticky windows and doors, stalling and dents. When she complained to the salesperson, he told her that, "It's a new car and these problems have to work themselves out." Trusting the salesperson at his word, Cagan drove away in her new Dodge. When the car developed more problems within a week, she took the car back to the dealer. For the next several months, Cagan tried to get six different Chrysler dealerships to repair her car, but still without satisfaction. She sent letters and made telephone calls to Chrysler. All she received was the run-around. By this time, the consumer was quite angry. "The car had been defective since the date of its purchase. After three government recalls, numerous problems and defects, I was afraid to drive the car," she said.
So Toby Cagan filed a lawsuit against Chrysler Corporation in Civil Court, in the city of Queens, New York. Planning ahead, she saved all the repair orders to document her "lemon" story, showing how she had brought the car into numerous Chrysler service departments again and again with no success. Chrysler simply could not fix her car. As her story unfolded in the courtroom, the shabby treatment Chrysler gave the consumer was exposed. She brought in a mechanic to verify the defects in the engine and drive-train. A body shop owner testified that her car had formed rust.
Cagan also brought in reports from the Center for Auto Safety, describing how the Center had written to Chrysler Chairman Riccardo about the large number of complaints on the Aspens and the identical Volares. Most of the complaints, which were similar to those Cagan had experienced, concerned carburetor, brake, driveline and steering problems. (Chrysler had earlier denied the Center's charges, calling the group's claims "irresponsible." But within the next six months, Chrysler had initiated four large recalls for the very same defects experienced by consumers writing to the Center and Ralph Nader.
Although Chrysler brought in an expensive New York City lawyer, its only witness was a zone official who admitted, incredibly, that the car was defective, as Cagan claimed, but that given enough opportunities Chrysler could fix all the defects. After hearing Cagan's witnesses at the trial, Chrysler gave in and offered to refund the consumer's purchase price minus $500 for the 18 months she had owned the car.
Cagan and other consumers who do not give up easily prove that you don't always need a lawyer to take a giant corporation to court and win. But you do need persistence and planning.