How To Take a Big Vendor To Small Claims and Win

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.'"

Comments

What product and OS?

[Anonymous Coward]

What product, OS, and hardware didn't work together? While I see that the point of this isn't to show your case, I'd still like to know the details.

I love my Adobe CS4 Master Collection.

Re:What product and OS?

[Sycraft-fu]

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 several languages, however I do not do a good job of actually putting a program together. It is not a skill I have. That I can diagnose and fix software problems doesn't mean that I can write the software.

Well I've found the opposite is very often true. I know many computer programmers that suck at the systems administration. 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. They can be downright disastrous as computer users, despite being able to develop software. They understand how to plot out the flow of a program and turn that in to a language the computer can understand. They do not understand the big picture of how all the hardware and software interacts on a live system.

So I can perfectly well believe that a software engineer with plenty of experience could get thwarted by something that, from a systems administration point of view, is fairly simple. 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?

Re:What product and OS?

[mwvdlee]

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 software interact to form a stable information system.

From a programmers's point of view, an ideal computer is one with unrestricted access. From an admin's point of view, an ideal computer is one with the power turned off. The "big picture" is somewhere inbetween.

Re:What product and OS?

[Anonymous Coward]

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.

Dead right. Your statement reminded me of a tech writer on a newsgroup I used to follow.

His sig file read:

Tell a carpenter he's not an architect and he's OK with it. Tell a programmer he's not a GUI designer and he goes out of his skull.

Re:What product and OS?

[Anonymous Coward]

I don't know what world you live in buddy. But software engineers, and programmers especially, that don't know how to "administer a windows pc" are a very very tiny minority. You should get out of your little "windows administration" bubble and meet some actual programmers.

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?

Actually, the rest is pretty darn easy, buddy... Lol. We're only limited by the body of our knowledge, which is probably the effect that you observed. We are programmers, that doesn't mean we can administer medium-large scale "windows administration things". Stuff like Active Directory and [insert proprietary software here]. I'm sure you know all about that stuff, being a sysadmin. You seem to be grouping this learned/acquired knowledge with normal PC administration, which we are pretty adept at doing.

Basically, you're a failed programmer, as you mention in your post. And so you want to make yourself feel better about being a "successful" sys admin, and not a programmer. Code-envy? All this by "putting down" programmers, at least to your level. We have a word for people like you. Bully. And it is precisely that mindset that kept you from becoming a programmer.

Re:What product and OS?

[PopeRatzo]

I'd still like to know the details.

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:What product and OS?

[Jenming]

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:What product and OS?

[__aasqbs9791]

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 subjective and people can be down right impossible to please and unhelpful in determining what they'd prefer? Maybe because I don't see the technical challenge so I don't get that sense of relief when I figure it out? It is basically art, and you can't really be sure when it's right. Any group large enough will have someone who hates it, it seems. But a technically right solution can be proven right or wrong. :shrugs:

Re:What product and OS?

[Low Ranked Craig]

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 my boss what the deal was and spent the time reviewing specs instead of coding.

But really, it boils down to interest and work ethic. I'm very interested in UI and application development. I write (according to other professionals that have reviewed my code, not me) clean, efficient code that follows the standards and the spec. I also participated in numerous contextual design exercises working directly with customers on developing better UI. So I'm good at writing classes and logic, and also good at developing UI, but only barely adequate at sysadmin on my small Linux / Unix network.

Having said all this, we don't know what the exact issue was and we don't know what specific skill set she used to win.

Re:What product and OS?

[DaMattster]

Since it is a court proceeding, the judge's opinion should be published. Unfortunately, we kind of need to know what state and district the case was filed in. Plus, the rules of Small Claims Court are somewhat fast and loose. In some states, like Pennsylvania, a small claims court judge (also known as a district court judge) is not even required to have a law degree and is an elected position. In fact, I knew someone running for this position that only graduated from high school. Ostensibly, they are given some training in the field of rules of evidence. Still, when you think about the above situation, your odds are pretty long on winning and it will not take much technical jargon to confuse a judge into siding with big brother.

Re:What product and OS?

[butlerm]

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.

My understanding

[Anonymous Coward]

My understanding is, unless you sign an agreement with your signature, possibly digitally, the license is not binding. Has anyone experienced something different?

Re:My understanding

[91degrees]

All sorts of agreements are binding without that. Legally, buying something from a shop is a contract. The act of me giving money and the shopkeeper accepting it is acceptance that I have exchanged money for the item in question.

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

[Anonymous Coward]

>All sorts of agreements are binding without that. Legally, buying something from a shop is a contract. The act of me giving money and the shopkeeper a
ccepting it is acceptance that I have exchanged money for the item in question.

Yes, and then the item is yours and the money is his.

Licensers don't want it to work that way (well, they certainly want the money).

Re:My understanding

[flyingfsck]

However, there are various laws that may override that which you have 'accepted' - the constitution, the sale of goods act, contract law... That is why you need a lawyer. You need someone who knows the big picture.

Re:My understanding

[rtfa-troll]

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:My understanding

[larry bagina]

a signature is only required for real estate and transactions that will take longer than a year to complete. Obviously, it's useful to have a signed contract if there's a problem. but at it's heart, a contract is two people (or companies) making an agreement.

Re:My understanding

[Ciggy]

The biggest problem is that licencers want to tell you you're buying the product in big letters, but put in small print that you're actually only buying a licence to buy the product. How often do you see the advertising "Own the latest film on DVD" when you're really owning a licence to view a copy of the film on DVD?

Whilst selling you the film, they switch the film for a licence to view it.

Re:My understanding

[91degrees]

Yes, a licence is different from a sale. But whether it's a valid contract or not doesn't depend on the signature, which was the only reason for the example I gave

Re:My understanding

[AmiMoJo]

Is it really that simple in US law?

In the UK you own a copy of the film to do what you want with, as long as it's within the bounds of the law. The copyright holder can put "all rights reserved" on it but beyond that they can't actually specify exactly how you use it, only the law on copyright can. They can't sell you a license, only a physical copy of the film.

Software can try to force you to click "I agree" before installing it but that is a somewhat murky area. Recent cases have shown that these EULAs cannot override your legal rights such as the requirement for the software to be "fit for purpose". If the EULA says "no backups" by the law allows you to make one then the law wins because a contract cannot override it. You own a copy of the software, period.

How far this extends is not clear. If you buy a download version it is most likely the same as buying a physical version, but that is untested in law. If you disagree with the EULA but were forced to open the box to read it then you should get your money back, but that too is untested.

How far that extends is not clear. If you simply don't agree to the terms and so cannot use the software

Having been in a similar situation before...

[CaptainNerdCave]

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:Having been in a similar situation before...

[Anonymous Coward]

Think of it as the company pleading the fifth amendment regarding the correspondence that proves their fault.

You can't plead the fifth in a civil case.

Re:Having been in a similar situation before...

[laughingcoyote]

You can't plead the fifth in a civil case.

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...

[CaptainNerdCave]

I didn't mean it in the sense of actually doing such a thing, but simply that their evidence of wrongdoing might not appear.

Re:Having been in a similar situation before...

[Lunar_Lamp]

How does that work in practice? Could not the doctor you speak of say "I'm pleading the Fifth to avoid criminal prosecution"? Does the doctor have to say which criminal law he may be prosecuted of? If so, that in itself would be self incrimination surely?

Re:Having been in a similar situation before...

[Anonymous Coward]

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:Having been in a similar situation before...

[Surt]

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...

[daeglo]

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:Having been in a similar situation before...

[westlake]

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 conclusions.

You can't be compelled to testify against yourself. But there are times and places where you can be forced to invoke the privilege explicitly - and publicly.

The geek tends to forget that "jury nullification" cuts both ways:

I always refuse to talk to police, and take the fifth unless there's an extremely good reason.

Think about how that statement parses to a juror whose lifetime encounters with the police and the courts could be numbered on the fingers of one hand.

 

Re:Having been in a similar situation before...

[Kashgarinn]

You do not have to plead the fifth if you know that you did something wrong, you should also plead the fifth if you're innocent and don't want to give information that might be then used against you, here's a great lesson: http://www.youtube.com/watch?v=GMQYB2Coufg

Don't just think "I'm innocent" and thus should or have to answer all questions.

Yay Poster!

[phantomcircuit]

It's a print link. Yay poster!

Re:Yay Poster!

[Anonymous Coward]

Makes it 10 times (at least) easy to read.
Hopefully the OP started a new trend :P

Re:Yay Poster!

[Provocateur]

He must be new here...

Re:Yay Poster!

[guyminuslife]

Not on a 24" widescreen monitor.

And no, I'm not going to resize my browser window.

Re:Yay Poster!

[thegarbz]

Yes I'm too stubborn for my own comfort too.

Re:Yay Poster!

[Anonymous Coward]

And no, I'm not going to resize my browser window.

Your life must really suck...

Re:Yay Poster!

[6Yankee]

Poster? You must have a bigger printer than me :(

Re:Yay Poster!

[Anonymous Coward]

You know, out of all the stupid tags slashdot has, I'm really surprised articles don't get tagged with "printlink" if they were posted as such.

You have better odds in Small Claims Court

[socz]

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! :)

Re:You have better odds in Small Claims Court

[Achromatic1978]

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.

Re:You have better odds in Small Claims Court

[Fluffeh]

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:You have better odds in Small Claims Court

[socz]

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!)

Re:You have better odds in Small Claims Court

[Anonymous Coward]

And with a nick name like Socrates (I can't even get my friends to say my real name!) I have to represent! :)

Or die trying...

Re:You have better odds in Small Claims Court

[beaverdownunder]

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 'phone home', and Adobe would just blacklist the serial number? They'd have to be pretty silly.

Re:You have better odds in Small Claims Court

[Mr. Freeman]

"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.

Re:You have better odds in Small Claims Court

[DarthBart]

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:You have better odds in Small Claims Court

[guyminuslife]

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:You have better odds in Small Claims Court

[AK Marc]

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 where you are, but the rules are different in most states, so your rules might not apply elsewhere.

Re:You have better odds in Small Claims Court

[micheas]

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

[micheas]

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

Re:You have better odds in Small Claims Court

[snowgirl]

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:You have better odds in Small Claims Court

[snowgirl]

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

[Anonymous Coward]

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.

Right. The best piece of legal advice I've seen on /. was just a week or so ago. Someone said a person should go and talk to a lawyer IN HIS OFFICE and not screw around with mail or email, either of which MIGHT become subjiect to discovery, unlike a conversation.

Re:You have better odds in Small Claims Court

[snowgirl]

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:You have better odds in Small Claims Court

[blantonl]

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:You have better odds in Small Claims Court

[bhtooefr]

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:You have better odds in Small Claims Court

[Anci3nt of Days]

Or better yet shut up in general. Defamation cases have paid out on less than you posted above - especially as on the internet they could forum shop for whatever country had more favourable laws. Don't get me wrong - I'm all for sticking it to the man... but for god's sake finish the case (including all appeals) before you go blab, let alone publish a book (ie 7+ years after you actually get paid following a judgement).

Re:You have better odds in Small Claims Court

[Surt]

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:You have better odds in Small Claims Court

[socz]

That is actually why up to now I've never said anything about it on here, though I've had a LOT of questions to ask. I've stuck to the "self help center" at the court and well, more than filling out forms, they don't help out much it turns out (they can't!).

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 come across (I really don't know why).

But I feel that I am relatively safe for the simple fact that I've saved at least 3 aces. So if my appeal comes back overturned, I can obtain an attorney and have them present my materials properly and with what I know now about the law, they're pretty much unbeatable.

Re:You have better odds in Small Claims Court

[socz]

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 why I did the same. But with me, I was told "you can't do that, you need to give time for discovery." Or something along those lines.
n) Attorney made her clients argument under section foo (not really the code section) (a). Which under any 'normal' circumstance could have ended my actions. But the attorney misquoted the legal code which should have been say bar. So the judge gave us both a copy of the correct section of law they were referring to and it turns out that section (a) was pretty much it for be, but section (e) opened the door, which is what we proceeded under. And in effect because of her mistake, I was able to use it to my advantage to 'learn about' the laws I needed to help me out.
n) At my deposition I provided all materials requested (my proof/evidence) which the attorney insisted didn't exist (like I said, it's over whelming evidence). She refused to look at them and went as far as to say that she could not even understand them - their computer couldn't even 'play them' (the files). I explained to the judge that "they're in trouble if they can't play mp3 files and open PDFs. Even my phone can play mp3's and open PDFs!"
n) I think one of the worst (and there's plenty more) things the attorney tried to do was take actions without me present straight out telling the judge I'm not there when I clearly was. But worse was when the clerk asked us to come to an agreement for a date and since it was at the beginning I was like ????????????????? the attorney felt that they could represent me without asking me what date was good (for an important matter). So when I hear them telling the clerk "we have decided on this date" and the clerk asks me if it's correct, of course I say no. That just upset the clerk a WHOLE LOT.

That goes on and on and on and on.... At least where possible, I do what I've been told and have learned. I have to give notice and a lot of other things. But the attorney doesn't do the same for me on everything. So I'm sure if I had an attorney, just their general 'attitude' would work more in my favor. But, I AM pro per. Which is why when I asked the attorney "so what happens next" or "what do I do (in regards to filing my first notice)" I was told: that's what your attorney is for, I'm not your attorney." And that lead to why at the end of my deposition, when they asked: "who is helping you?" I answered, "that's my problem, isn't it?"

You know, one thing I've always said, is, "just because you have money, doesn't mean you have class." At the deposition, when I gave the attorney a nicely packaged DVD with all materials requested, they almost through it in my face! I mean, they did throw it back, but just short of my face. I gave it more than 3 times and each time it was thrown back at me. The reporter was :O when she saw I politely tried handing it back to the attorney.

Re:You have better odds in Small Claims Court

[Anonymous Coward]

So how do I sue SONY for stealing $((# of PS3 owners) * (value of stolen PS3 feature))?

Re:You have better odds in Small Claims Court

[Anonymous Coward]

I think the poster just wrote it in a very confusing way. He's saying that his friends that he has talked to about the case have come up with those 4 possible ideas about how he's managed to do so well against this lawyer. He's not saying that those are 4 facts about the case.

Re:You have better odds in Small Claims Court

[socz]

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 that is why I didn't study and go on to practice law because I didn't want to make money defending people who I knew were bastads!

OR the defendant has not told the attorney the truth (which is VERY possible/likely) and that is why the attorney keeps running into walls when I make statements and back them up with evidence. Must be frustrating to not be able to defend your client. Which makes me wonder, was the defendants decision to lie about EVERYTHING on the stand her choice or the under the attorney's direction?

But like I've told everyone else, I've found out I wouldn't have had a case if it wasn't for all the evidence I have piled up (that I prepared and took for over a year before I filed the case). Otherwise it would be as the attorney claims, all "hearsay" and that would be it.

Re:You have better odds in Small Claims Court

[Anonymous Coward]

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.

Re:You have better odds in Small Claims Court

[micheas]

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 get all the money owed to you.

I would go talk to a law clinic at one of the local law schools, or see if you can find a bankruptcy attorney that will give you a free consultation.

If you can get the case number, and court and opposing council's contact information (which will be located on the first page of every filing) you should be able to get usable advice.

Re:You have better odds in Small Claims Court

[micheas]

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 include sanctions (damages) for the bad behavior. In really nasty litigation, sanctions can be a sub plot of almost as great of issue as the real complaint.

I have found Cornell Law schools online classes amazingly helpful for figuring a lot of this out.

Re:You have better odds in Small Claims Court

[snowgirl]

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 much an automatic ethics violation to lie to the court.

But again, even if a company is allowed to hire a lawyer for small claims, in WA state this is a maximum of 5,000. The corporation can hardly spend any time at all of the lawyers before racking up costs that pale compare to the maximum judgement.

However, WA state is also a state that allows for lax enforcement of procedure, and evidence rules during Small Claims Court.

Re:You have better odds in Small Claims Court

[snowgirl]

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:You have better odds in Small Claims Court

[Have Brain Will Rent]

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 as way as to provide no actual benefit to me - yes, this was my lawyer.

Eventually I just represented myself. For most of the process (years) the other side's lawyers had the attitudes you describe in 1(a) and 1(b). They would make outrageous claims about points of law - outrageous enough that I knew it was BS and would patiently describe why to them. They then moved on to statements that were just plain illogical and mixed in some threats. I patiently described to them why they were wrong and why their threats weren't credible, or (and this infuriated them) I would just invite them to carry out their threats. I think in part they were just trying to wear me out trying to sort through their BS but I'm a stubborn guy and reasonably bright (enough to read a law book anyhow) so I just kept sending it back. A couple of times they did things that I believed violated their professional ethics and I mentioned I might bring this up with the appropriate disciplinary body - that got their attention.

I think that the more I mowed down the lawyers' straw men the more pissed off they were and they developed an emotional need to beat me - always a mistake imho. I think that their clients just couldn't believe that one untrained "little guy" could beat them and their "real lawyers". In the end they looked at their legal bills, realized I wasn't going to stop, knew all the actual evidence supported my claims, and so they surrendered. They paid a lot of money in legal costs - more than an order of magnitude greater than if they had just settled at the beginning of the action and several orders of magnitude more than if they had just settled before I started the action. Crazy stuff.

I think your comments about navigating the legal system and what that takes are spot on. You are probably right about the judge but afaik they are supposed to give some latitude or otherwise assist the unrepresented litigant (at least where I live) because their interest is supposed to be justice being done although sadly it is obvious not all judges are able and/or willing to follow that.

Anyhow good on you for sticking to your guns and going the distance and good luck with the rest of it!

Re:You have better odds in Small Claims Court

[Have Brain Will Rent]

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 health. I concluded that in some cases the real benefit of having a lawyer on your side is not their legal expertise but them being a buffer and reducing the stress you suffer.

Re:You have better odds in Small Claims Court

[Surt]

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:You have better odds in Small Claims Court

[socz]

Re your other post: I agree 100%, one of the few advantages of having an attorney is using them as a buffer. You'll still have stress, but not as much as representing yourself. As far as the lasting health consequences: you're right about that too. It's something that has not only affected me buy my family and friends as well.

At one point during proceedings, the attorney was making so many threats against me how "things should be the other way around" that the judge told them "we're here for 'those actions' against your client, now. If you want to take action against the plaintiff you are welcome to do so later." Just as in playing cards, you need to be able to bluff the other person into submission. But I think in order to do this in court you have to have something on your side other than "they're just lying!"

It would have probably have been helpful if I picked up a book, but everyone told me before I started the actions that "you have to win, it's so obvious!" Others who have been through similar proceedings explained most things in detail. Unfortunately, my circumstances were different and the defendant lying about EVERYTHING didn't help out either. That made me have to re-do several things (which didn't make the court happy) as different things moved forward.

As time went on the attorney made crazy arguments that made no sense! That's why I tell everyone learning about Soc and how he operated has helped me out so much. It's amazing how someone can just try to pass off comments as facts when they don't 'make sense' in any way possible. That was something that opened the door just a tiny bit more for me to go on. What's cool though, is that the judge gave alternate scenarios in his ruling, saying that 'if these other conditions were brought into play, even though they aren't applicable in my case, then they would also be in my favor. So all the arguments the attorney has made or could make have been covered.

The Justice System is in pretty bad shape, and it's not something for everyone to tackle. I wouldn't want to defend myself in a criminal case! But I guess that most of us who are on this site would be able to represent ourselves in most things. But I really doubt the same to be true for others, it's just not possible for them to do so. Once again I'm not boasting, but more than a few people have told me I should help out others in the same situation. I told them I wouldn't want to do this as a job (besides the obvious I'm not licensed to practice). Also what has made my case is that I was able to prepare for it for more than a year in advance and use a LOT of technology (which is why I want to write about it). Most people might know they're heading into trouble, but just aren't prepared for when they finally do something about it.

Re:You have better odds in Small Claims Court

[socz]

Thank you very much for the info. I will look into it.

Re:You have better odds in Small Claims Court

[snowgirl]

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.

So we should imprison some people because a judge/jury found their homicide unjustified, while the same person in front of a different judge/jury would have had their homicide found justified?

This could happen when two judges/juries have varying opinions about if protection of property can justify lethal force.

One aspect of "fairness" is equal application of the law to all individuals. And that a person should have the ability to know if their actions are legal/protected prior to actually performing them.

Applying a vague ambiguous law, which allows justification for homicide to be argued a priori every single time is prone to unfairly impact those who are not able to represent themselves well.

Re:You have better odds in Small Claims Court

[Anonymous Coward]

He who is his own lawyer has a fool for a client.

Re:You have better odds in Small Claims Court

[redscare2k4]

You'd be amazed to know that some lawyers actually know the difference between law and justice and sometimes don't do their best on purpose, thus helping the other part indirectly. It's rare, but I know that for a fact.

I think that's probably what's going on.

Re:You have better odds in Small Claims Court

[bhtooefr]

I'm saying in general, not just small claims.

And, the point is that there would no longer be a bar exam, or registration to practice law.

Re:You have better odds in Small Claims Court

[Surt]

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.

So we should imprison some people because a judge/jury found their homicide unjustified, while the same person in front of a different judge/jury would have had their homicide found justified?

This could happen when two judges/juries have varying opinions about if protection of property can justify lethal force.

One aspect of "fairness" is equal application of the law to all individuals. And that a person should have the ability to know if their actions are legal/protected prior to actually performing them.

Applying a vague ambiguous law, which allows justification for homicide to be argued a priori every single time is prone to unfairly impact those who are not able to represent themselves well.

But we have that problem with the existing system, so why not have a simpler legal system that can work for the little guy some of the time, instead of only working for the rich and the lawyers.

Re:You have better odds in Small Claims Court

[snowgirl]

But we have that problem with the existing system, so why not have a simpler legal system that can work for the little guy some of the time, instead of only working for the rich and the lawyers.

Because even if we simplified everything, we would just build up complication in it fairly quickly.

Look at any Nomic... it doesn't take long before rules are in dispute, and you get people specializing in rules lawyering.

Tribunal

[WillKemp]

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.

Re:Tribunal

[Anonymous Coward]

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.

yes yes yes http://cssgame.net.ru/

Re:Tribunal

[beaverdownunder]

Really? Cool beans! But doesn't anyone who represent themselves have a fool for a client? ;)

Re:Tribunal

[WillKemp]

Really? Cool beans! But doesn't anyone who represent themselves have a fool for a client? ;)

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. They would have come out of it much worse off (financially and legally, probably) if they'd had representation.

Re:Tribunal

[fishexe]

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?

Re:Tribunal

[fishexe]

Really? Cool beans! But doesn't anyone who represent themselves have a fool for a client? ;)

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. 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:Tribunal

[WillKemp]

I can't figure out from that article why they would have been worse off with representation.

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 that long.

But there was also a definite PR benefit from being unrepresented and standing up to the might of a multi-national corporation. And, ultimately, the case was a total fiasco for McDonalds - even though they initially "won" most of it.

The full story's here http://www.mcspotlight.org/case/trial/story.html

Re:Tribunal

[IamTheRealMike]

If they'd been represented their representation would probably have told them they had no case and to stop wasting the courts time, thus saving everyone money. I mean, I read the article and I just don't see how the case was a "fiasco" for McDonalds. Some people made up a lot of shit about them which ultimately they had no evidence for, and the court agreed.

Re:Tribunal

[WillKemp]

It was a PR disaster for McDonalds at the time.

Re:Tribunal

[Anonymous Coward]

The normal rules of evidence do not apply in US Small Claims Court either.

Qualifications

[Hadlock]

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.

Re:Qualifications

[Korbeau]

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

Re:Qualifications

[slackbheep]

Mind you, if she had been dealing with Nissan, Kellogs or anyone outside the software industry she'd have been shit out of luck it seems.

Re:Qualifications

[Anonymous Coward]

Next up, an article written by Steve Martin on how to become a millionaire!

Re:Qualifications

[Kjella]

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 a few years and is quite used to knowing what an hour's billing is worth to me personally pre- and post-taxes. If I have to fight you half an hour for pocket change, it's just not worth it, I'd just work and bill half an hour more. I don't have quite that flexibility anymore but I still know very well what an hour is worth.

FTA

[csueiras]

"Even opening a PDF makes me nervous!" EVERYONE BACK OFF, ITS A PDF!

Re:FTA

[SanityInAnarchy]

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?

They WILL spare expense....

[Itninja]

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...

Re:They WILL spare expense....

[Anonymous Coward]

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.

Re:They WILL spare expense....

[AusIV]

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 out the law before hand, and in my state this can produce admissible evidence). She said she remembered making that offer, but apologized that she couldn't help me out. With the recording in hand, I called up T-Mobile's customer loyalty and told them that I was ready to file a claim and had a recording as evidence, and all I needed was their registered agent so I could serve them. Suddenly they were happy to work with me, despite three months of denying responsibility and refusing to help.

Re:They WILL spare expense....

[Anonymous Coward]

Forgive my ignorance, but what is SCC? Googling returned a bunch of colleges, commissions, and the supply chain council.

Re:They WILL spare expense....

[Anonymous Coward]

Small Claims Court, you retarded monkey.

The fact that this is newsworthy is sad.

[MindlessAutomata]

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:The fact that this is newsworthy is sad.

[MindlessAutomata]

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

Re:The fact that this is newsworthy is sad.

[socz]

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 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.

That's another reason I'm doing ok, because most people can't explain their actions/reasons/motives etc for what they're asking for. They can't come up with proof of bills, expenses or damage in some cases. So when things happen and there is no "evidence," then it's very difficult to give them the reason. In some cases I heard, I would personally say both parties were at fault because neither denied the accusations. That's why I don't envy the judge.

Re:The fact that this is newsworthy is sad.

[kainosnous]

I agree that the laws are too bloated and incomprehensible. You are also right that even the police don't know the laws which they enforce. An example of the later involves several instances of police here in TN enforcing non-existent gun laws. The question to ask is who's fault is it? I would argue that the fault is clearly that of the average citizen. It is his apathy that allows such monstrosities to exist.

While the average citizen should be inspecting businesses and holding them to a standard, he leaves that job to big brother. Tired of Adobe pushing bad products? We should simply stop using them, but instead we tell the government to stop them so that we can blindly buy whatever we see. Then when our day comes in court, we can't navigate the laws like these businesses can.

Basically, I suggest a better court: that of the free market. Imagine how much more we would accomplish if we spent that money pushing the market instead of lobbying politicians. Imagine how well OSS would do if we funded it like we do MS. Sadly, people are far to lazy and greedy to voluntarily do what is needed. Ultimately, we'll suffer for our apathy.

Re:The fact that this is newsworthy is sad.

[Anonymous Coward]

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...!

I'd rather say the experts (i.e. lawyers) win. Of course, those who can afford the lawyers also win, but no as much as the lawyers, who will benefi no matter who won/lost each case.

Fundamentally, this is little different from a lone in-house programmer making the in-house system so convoluted that nobody but himself understands and can make changes, in order to make his job secure.

Look at how the legal system (in US) works, it is designed by lawyers, used almost daily for-profit by lawyers, judges are former lawyers, lots of legislators are former/currently lawyers. How much more "by lawyers, for lawyers" can you get?!

Re:The fact that this is newsworthy is sad.

[MindlessAutomata]

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:The fact that this is newsworthy is sad.

[Anonymous Coward]

The law is complicated because human interactions are complicated. Far more complicated than anything software engineers have to deal with. Get over it.

Re:The fact that this is newsworthy is sad.

[mpe]

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 Latin, no less). And with this structure, who wins? Why, the ones with the resources to hire experts...!

These need to even be "experts" in the matter at hand or even law. Hiring experts who can drag things out for ages can be highly effective.

Re:The fact that this is newsworthy is sad.

[mpe]

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.

Re:The fact that this is newsworthy is sad.

[mpe]

You are also right that even the police don't know the laws which they enforce. An example of the later involves several instances of police here in TN enforcing non-existent gun laws.

Like there are not enough real laws being broken... There's also something seriously wrong if this kind of thing happens frequently.

The US has that too

[Sycraft-fu]

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:The US has that too

[DMUTPeregrine]

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:The US has that too

[micheas]

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 template for how to file a small claims case.

A massive number of small claims would require a level of social organizing I have never witnessed, and I have managed thousands of volunteers for a single local election that people were very passionate about.

Some examples of things that did not get thousands of small claims to be filed:
FSF supporters demanding windows refunds.
Sony root kits
Spam
Apples defective mag safe power cords.

While you theoretically might be correct, the reality is that you are more likely to be told by the judge that you didn't do what you needed to than to find stiff opposition from a corporation.

You will get opposition from the in house council that knows the law better than you. (although they are in house council, so they may just view it more as a morning off work than anything else.)

Re:The US has that too

[Anonymous Coward]

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

This is a slight oversimplification. SCOTUS binds the state courts on FEDERAL law, while the State Supreme Court binds federal courts on that STATE's law.

Vendor = Retailer?

[DrScotsman]

Did this person happen to buy the software from Adobe (unlikely to be cheaper than anywhere else), or is this yet another case in the US confusing us Europeans where the manufacturer is sued instead of the retailer? (like the recent US PS3 class actions against Sony VS the British owner getting a partial refund from Amazon)

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.

Re:Vendor = Retailer?

[tibit]

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?

Bad article

[Mr. Freeman]

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:Bad article

[rdwulfe]

Agreed. This should be titled 'Someone goes to court and wins', rather than 'how to..' anything.

Re:Bad article

[Anonymous Coward]

u r so right - crappy article
I think the worst point was the comment that in some states you have to go to the library to find out basic rules for how to conduct a lawsuit.
Hard to believe that you can't get this info on line.

Re:Bad article

[Anonymous Coward]

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".

AOL to that. I was hoping for a thrilling blow by blow account of the proceedings, but all we got was "wear a business suit"... WTF?

Unless the worthiness of the article was: Yay, someone got their money back from adobe, film at 11.

Rubbish...

Having taken people to small claims before...

[Chas]

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

Re:Having taken people to small claims before...

[Anonymous Coward]

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

Exactly. Many years back, my sister damned near got a law degree from what she learned about pursuing a judgment.

Apparently it's up to you to convince the sheriff to enforce it and they have way too much latitude in how they spend their time, even after a court order. Add to that the fact that the SOB defendant lived in the next county up (you don't have a vote to give that sheriff), owned his own business, therefore was able to decline garnishing his own wages for the settlement, etc, and she never collected a nickel.

Re:Having taken people to small claims before...

[larry bagina]

couldn't she get a lien on his property?

Re:Having taken people to small claims before...

[Anonymous Coward]

I recall the instance of a chap that sued Wells Fargo in SCC circa 1975, and won by default. He walked into the headquarters building with the judgement and a Deputy Marshal, pointed at the antique stagecoach, and directed the Marshal to "Seize that stagecoach". As the story goes, a swarm of suits promptly paid him green money to go away.

Title should be "I took ...", not "How to ..."

[the bluebrain]

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.

Re:Title should be "I took ...", not "How to ..."

[noidentity]

The penultimate sentence is "Needless to say, I have not bought any other Adobe products."

The ultimate sentence is "Even opening a PDF makes me nervous!"

Re:The only winning move. . .

[erroneus]

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?

The single most important thing about small claims

[unassimilatible]

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!

IAALBNYATDNCLAJTDROALTLDEPTLIYSSDNROTASYOLC I Am A Lawyer But Not Your Lawyer And This Does Not Constitute Legal Advice Just The Drunker Ramblings Of A Lawyer That Likely Doesn't Even Practice Law In Your State So Do Not Rely On This And Seek Your Own Legal Counsel.

Re:The only winning move. . .

[fishexe]

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.

Why bother?

[devent]

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.

Re:Why bother?

[Anonymous Coward]

You agree to a EULA, of sorts, EVERY time you install a free software product.

The GPL is a EULA of sorts, and you have to agree with whatever license the piece of software comes with.

So please, don't confuse the issue and give out bad advice.

Re:Why bother?

[sciurus0]

IANAL, but the GPL does not affect your rights as the user of a piece of software. It affects your rights as a distributor of that software or derivatives of it.

Re:Why bother?

[devent]

> The GPL is a EULA of sorts, and you have to agree with whatever license the piece of software comes with.

ROFL. You don't have to agree to the GPL at all. Please read it up and stop this non-sense. http://www.gnu.org/licenses/gpl-faq.html#ClickThrough

Merely agreeing to the GPL doesn't place any obligations on you. You are not required to agree to anything to merely use software which is licensed under the GPL.

Maybe

[b4upoo]

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 screwed up in regard to collecting judgements.

Not in Australia

[Anonymous Coward]

In Australia lawyers are not allowed in small claims court, everyone including companies must represent themselves.

Re:Not in Australia

[PPH]

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.

Completely Untrue

[Anonymous Coward]

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:Completely Untrue

[Anti Cheat]

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 true at all, as described.

Not only how this person describes their court experience, but the lack of even reasonable detail makes me wonder. It is like sitting at a table with one of your friends that you know 'exaggerates' at times, to say the least. Now their latest story once again simply doesn't ring true. If I was to guess. This sounds more like someone that experienced a lot of frustration with support and had to work through the companies legal dept. presenting some of the evidence to their representatives, in order to get satisfaction. Then from there they simply embellished the rest to impress their friends. Now the story get's picked up for one reason or another. Now that person is stuck with continuing and expanding this fantasy story, or face embarrassment if front of those same friends. This simply isn't described like any small claims court I have ever been in.

Re:Completely Untrue

[DaMattster]

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.

Re:Completely Untrue

[Anonymous Coward]

The article is vapid. The details are fuzzy. There is no last name. "Jake" turns out to be a woman. The particular product is not listed. The exact amount of reimbursement isn't mentioned.

Re:The only winning move. . .

[Anonymous Cowpat]

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.

That happened to me too!

[Anonymous Coward]

I had a similar experience suing McDonald's because I am fat. You see their food is unhealthy and I cannot cook. After eating there regularly I got as fat Jabba the Hut. You see I know something about health but nothing about cooking but thanks to my victory in court, I can now afford a personal trainer so now I am more the size of Grimace.

David slays Goliath in small claims court???

[Anonymous Coward]

Not in Texas.

A non-lawyer "David" can sue an Adobe/Toyota/Goldman-Sachs "Goliath" in small claims court here and bring a seemingly bullet-proof case. BUT...what the Goliath's attorneys invariable do is notify the small claims judge that they have moved the case to state court (at a nominal cost of $250, I believe). Gavel comes down, and now David has to hire an attorney, pay any initial costs to get on the state court docket, and wait wait wait for the case to come to trial with his new attorney on the clock (1st bill reads: "While taking my morning crap, .5 hour for thinking about what an idiot you are for trying to sue Adobe ").

My understanding is that most other states operate in a similar fashion.

The fact that this is confusing is sad.

[Anonymous Coward]

But...but..."the law is such an enigmatic set of rules and ritual" should be an adequate defense in a court of law, not this "you should be prepared". ;)

A two-page monitor

[tepples]

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.

Return the replacement copy

[tepples]

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.

15 minutes to Wapner

[tepples]

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.

This story is bullshit!

[Khyber]

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.

Re:This story is bullshit!

[Anonymous Coward]

> ALMOST UNIVERSALLY WILL NO LAWYERS BE ALLOWED IN ONE IN THE USA.

I am constantly astonished by the ignorance that passes for "legal know how". Even in California you can get a lawyer into small claims court if he is already an officer in a company that is party to the case. Many states allow lawyers in small claims court and others allow them if both parties agree. Do you think if you have a law degree, and someone sues you in small claims court, you are not permitted to defend yourself and therefore suing a lawyer in california is an automatic default win? If you DO think that, please ask a passing orderly to "Adjust my meds" don't worry, they will know what it means. Why don't you people bother to actually read the law books (most are online) before making absurd posts?

Peter

Re:The only winning move. . .

[fishexe]

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.

In California

[fast turtle]

Lawyers are not permitted in Small Claims Court.

Re:In California

[Whuffo]

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.

I'm having a hard time with the OPs story...

[Anonymous Coward]

Part of the remedies were her system got so messed up trying things tech support had her try, that she had to reinstall.

Did she reinstall the product after reinstalling her OS? That would have been one of the questions I would have asked if I were Adobe. I would also have asked for definitive proof that the user did the things tech support asked her to do. Since she destroyed any possible evidence of such when she reformatted, the case could have been tossed out by that.

Lots of other little things where I can see that if Adobe cared, they could have won easily and the case been dismissed, with the plaintiff ending up paying the court costs and reasonable costs Adobe incurred....

Poor article quality

[SplatMan_DK]

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

Contrapreferentum

[Have Brain Will Rent]

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 for a non-lawyer to understand that the man had been at an unfair disadvantage when signing it. So the court ruled that in order for justice to be balanced then in such a case where a contract is drawn up by one side with legal expertise and the other side is just "a little guy" then any ambiguity in the contract is to be interpreted to the benefit of the little guy.

AFAIK this applies to all contracts which I would think includes EULAs.

Cost to litigate your claim is not the only factor

[Have Brain Will Rent]

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.

Good for her!

[Nabeel_co]

Adobe has had the nasty habit of releasing 3rd rate software at ridiculous prices for the last 10 years. While Microsoft has actually cleaned up their act. Congratulations Adobe, for becoming the new Microsoft.

Re:Why bother? :-(

[Anonymous Coward]

Who you calling "you people" ???

I got Microsoft to refund 100% of my Office cost

[RonMcMahon]

Back in 2004 Microsoft paid me $850 for my copy of Office 97 Professional because it was shipped to me on floppy and by 2004 the software would no longer install, calling me a thief.

It turned out that the floppy version had a lock built in to it that would kick in after a certain number of installs and by 2004 Microsoft no longer shipped software in floppy format.

I checked out the printed Software License and it made no mention of this install limit or the lock mechanism. Microsoft offered to ship me a replacement CD, but the notebook I was using this on had no CD ROM drive. At this point I demanded a full refund and Microsoft paid me that $850 in exchange for Disk 1 and the Software License.

No court needed. :)

Re:cognitive dissonance much?

[Anonymous Coward]

And they're still smarter than the average American/Canadian system administrator.

5th Amendment in civil court

[HydroPhonic]

I can tell you that, in Family Courts (where the rules of evidence are also relaxed), taking the Fifth will result in adverse inference.... Don't know about general Civil Cases though....