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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.'"
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.
Makes it 10 times (at least) easy to read. :P
Hopefully the OP started a new trend
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.
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...
I judt got a nre Kinesis keybiartf so please excusr ant egregiou typos.
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!)
My abilities are only limited by my imagination
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.
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.
Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
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.)
Work bio at MMWD
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.
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.