Got a complaint against one of those faceless conglomerates, like your phone company or insurer? With persistence and preparation, you can emerge victorious.
By Liz Pulliam Weston
Most of us, when faced with bad customer service, might complain about the company, bad-mouth it to our friends and vow never again to buy its products.
That wasnt enough for Joan Ruch. When the Annapolis, Md., woman had trouble getting her 1996 Windstar fixed, she took Ford to small-claims court. She says her motives were as much about justice as they were about the financial loss she was facing.
I think its important for (companies) to know that people wont go away, Ruch says, especially on an issue they feel harms their familys safety.
Ruch was happy with the outcome. Ford offered her a reconditioned engine for $1,500, about half the wholesale price.
Small-claims court offers a last, cost-effective hope for the average consumer for redress when other problem-solving attempts have failed. Those who have used it say low filing fees, simple forms and few court delays make small claims an excellent arena for people who feel theyve been wronged by corporate America and want compensation -- or at least a chance to be heard.
If anything, small-claims court has become more accessible than ever before:
- Higher dollar limits in many courts mean bigger cases can be heard. Many states now allow plaintiffs to sue for $5,000 or more. Three -- Delaware, Georgia and Tennessee -- cap claims at $15,000.
- The Internet provides a plethora of official and unofficial guides to small claims courts. One place to start is Nolo.com, the Web site run by legal self-help publisher Nolo Press.
- Some consumer crusaders are pushing the boundaries of what kinds of cases can be tried. A few, for example, are using small claims court to go after spammers, telemarketers and junk faxers.
3 ways to win
None of this means that small-claims court is easy, however. Successful litigants may have to devote hours to researching the law, finding witnesses, documenting their case and practicing their presentations. Small-claims courts casual nature means judges can have more leeway than in regular court -- for good or for ill.
It isnt so much about the facts as how you can present the facts, said Ben Livingston, a Seattle anti-spammer who has won more than $12,000 in judgments and settlements in small claims court. If the judge is having a bad day or doesnt like you, you could lose.
On the other hand, you can also win -- in one of three ways:- By default. The other party may simply not show up. If that happens and youve prepared your case well, the judge likely will rule in your favor.
- By settlement. Many businesses and people dont want a lawsuit judgment against them to show up in the public record. Rather than hassle with you in court, they may cut you a check.
- On the merits. You explain what happened, present your evidence, the judge listens to the other party and ultimately rules in your favor.
Justice can be as swift as a few weeks, for the least busy courts, or may take several months, as it did with Ruch.
Ruch says she spent many hours on the Internet and in her local library, thumbing through a well-used guide to small-claims court, to prepare her case. Actually getting a court date took six months. After presenting her evidence and listening to Fords district manager, the judge sent them out of the room to work out a settlement, which they did. All told, the experience lasted less than an hour.
Other than taking the morning off work, the (court) process itself was pretty easy, Ruch said.
Be realistic
Before investing even that much time, though, you should ask yourself a few questions:
Do you actually have a case? You have to have suffered some kind of damage. If you havent been harmed, you cant win a small claims case -- no matter how annoying the companys behavior has been. Fortunately, the definition of damage can be pretty loose. Ruch, for example, was facing a $5,000 outlay for an engine that was failing -- but she hadnt yet incurred the cost.
Can you prove your case? Heres where detailed recordkeeping can make all the difference. Did you document your contacts with the company, including when and how contact was made and what was said? Do you have witnesses who can back up your claim? Ruch included a letter from her mechanic detailing her cars failing head gasket along with documentation of her attempts to get the problem fixed.
Can you identify the responsible business or person? You need exact legal names to file a lawsuit. Sometimes this can be the toughest battle -- especially if youre taking on telemarketers who may hide behind multiple corporate layers. Livingston says he was recently stymied by such a company, which convinced a judge that it had no relation to the telemarketer that had contacted him.
Have you tried to settle? Sometimes, all it takes is a letter outlining your problem, along with a threat to take the issue to small-claims court, for a company to take you seriously. Just the fact that you took the time to write a letter makes you a more serious threat than someone whos just blowing off steam to the companys telephone representative. Even if youre pretty sure the company wont budge, you should send the letter return receipt requested and keep a copy to show the judge.
Can you take the gamble? There are no guarantees. You may invest hours of your time and money, then draw a flaky judge. Or the other party might lie through her teeth or present fake documents. (The rules of evidence are much looser in small-claims court, and you wont have a chance to examine documents and witnesses in advance, as you would in a higher court). There might be a law you dont know about that undermines your case. Or you may simply not have a winnable beef.
Can you collect? Winning isnt the same as getting paid. If the other party doesnt pay up immediately, you may be able to garnishee wages, get money from bank accounts or put a lien on property. If, however, they dont have much in the way of assets or income -- or theyre hiding what they do have -- collecting what youre owed can be tough.
Where to find help
If you can answer yes to all those questions, then youre ready to go. Here are the basic steps:
Make sure you can file. Youll need to check your states rules on who can be sued in small-claims court as well as any statute of limitations. You also should understand the legal concepts generally used to establish liability or responsibility for damages. Nolo Press Everybodys Guide to Small Claims Court includes a list of the most commonly used concepts.
Figure out which small-claims court to use. If pursuing your case involves a lot of travel or going out of state, the effort involved might not be worth it. Generally, you have to sue in the small-claims court closest to the other partys home (if a person) or headquarters (if a business). But sometimes youre allowed to sue in the district where a contract was signed or other business was conducted. Livingston and others have successfully used some states anti-spamming laws to sue out-of-town telemarketers and junk faxers.
You can check out the laws of the different states at FreeAdvice.com, a legal Web site. Livingstons Web site, Zen and the Art of Small Claims, which chronicles his litigation hobby, has information on how hes won the venue issue.
File your case and pay the fee. The form you fill out at the county clerks office is generally called the plaintiffs statement and is usually pretty straightforward. The fee for filing varies greatly by county, but is typically under $50 and sometimes under $10.
Serve the other party. The person or company youre suing must be notified about the lawsuit, and youre not allowed to do that yourself. You can hire a process server, but that typically isnt a cost-effective way to go. Some states allow you to designate a friend or relative to serve notice. Most states permit an even easier route: certified or registered mail.
A date for the trial will be set, and youre on your way.
Ruch believes she struck a blow for corporate accountability with her case. She says, however, it would have been a worthwhile experience regardless of the outcome. Arguing her case, and seeing others argue theirs on the day she was in court, convinced her the little guy can still win.
It was interesting to watch American democracy in action, she said. It was definitely worth it.
Liz Pulliam Weston's column appears every Monday and Thursday, exclusively on MSN Money. She also answers reader questions in the Your Money message board.
|
