Slashdot Mirror
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.'"
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.
.333 in case victories could have easily quashed my actions from the start.
:)
I'm currently in an appeals court for a case I started in early 2009. I plan on writing about my experience to help out those EXACTLY in my situation. Although I've made many errors along the way, I've learned a lot on the fly and have been able to use both my errors and knowledge gained to help me out immensely. Everyone who knows about my case has come to the following conclusions:
1a) The defendant's attorney saw I was representing myself without an attorney and figured ez win (pwned).
1b) The defendant's attorney never took me seriously and figured ez win (pwned).
2) The defendant's attorney figured that with the minimum amount of "proof" (evidence) she could successfully defend her client in the proceedings.
3) The defendant's attorney doesn't like what their client has done and is in fact helping me out.
4) The defendant's attorney is actually so bad as an attorney, that an unskilled/untrained/inexperienced person in law is able to beat her even though any other attorney with an average of
So now with an order in my favor, we're in the appellate court to see what they have to say about the case. I also have a subsequent ruling in my actions against the defendant in a related action. But none of it has been easy, though many made it seem like it would be. There are many other factors that have contributed to my success thus far, notably other attorney's in the court room who find my case interesting. One who broke it down to me: "you have no case." But they also gave me some advice that "might' have helped me out.
Now in the appeals court, I am also representing myself. I had enough time and even requested an extension of time to complete my reply brief. As it turns out, it's not as easy to do. Sure, writing it was easy, nothing I haven't done before. But there was a very specific set of rules to follow and this is what took up time. With a page/word limit and a lot of rules, I would say that it's technicalities took more time than looking up laws and relevant cases. Understanding the laws are easy compared to writing the brief. I ended up taking a week off of work for a total of 10 consecutive days of about 12 hours a day minimum to complete it by the deadline.
I might have gone a bit off course there but the point is, for those (relatively few) of us who have a little something upstairs, we can still successfully navigate the legal system. You just need a LOT of determination, a lot of time, a little bit of money, a good case/argument, and more than anything: patience. I've been told by court officials who took part or have helped in my case that the judge had allowed several things that most other judges wouldn't have. The reason I've been told is because of my inexperience and self-representation. We'll see how I fare in the appellate court, but I'm not worried about biting the bag because I now have 16 months under my belt of playing an attorney.*
(* Might be worth mentioning why I didn't use an attorney. I know I'll need an attorney for the 2nd part of my actions (knowing the law isn't enough to favor me) so I am saving my money for that. But also because this is something that's huge in my life and means a lot to me, so there is nothing better worth dedicating myself to. And with a nick name like Socrates (I can't even get my friends to say my real name!) I have to represent!
My abilities are only limited by my imagination
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.
To fight the war on terror, stop being afraid.
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.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
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?