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In states with civil penalties, the manufacturer faces a much more unpleasant prospect if it loses at trial. The threat of having to pay two or three times as much is a strong incentive for manufacturers to settle lemon law claims voluntarily. The consumers get what they deserve, no less, and . . . → Read More: Chapter 12: Litigation (Page-16) 
A settlement conference is not arbitration. It is not binding on either side. A mediator cannot force the manufacturer to repurchase your car, but a mediator also cannot force you to take less than you deserve. Mediation can resolve a case only if everyone agrees. Civil Penalty California’s lemon law has a special provision for something called a civil penalty. The lemon laws of a few other states have similar provisions. The civil penalty is an additional penalty, beyond actual damages, that can be imposed on manufacturers for failure to comply with the lemon law. In California, it can be up to two times the consumer’s actual damages. Continue reading Chapter 12: Litigation (Page-15)              
Discovery In the course of your lawsuit, you will probably have to participate in some form of discovery. Discovery is the legal term for each party’s right to learn things from the other side. This includes the right to ask questions, request documents, or inspect property. In a typical lemon law case, the manufacturer will want to take your deposition. In a deposition, the manufacturer’s attorney asks you questions, which you must answer under oath. Your attorney will be present to protect you against improper questioning. Continue reading Chapter 12: Litigation (Page-14) 
How Long Will It Take? It is very difficult to say how long a particular lemon law case will take, as each case is different due to the manufacturer, the age of the vehicle, its mileage, the nature of defects, and the number of repairs. While some cases settle in prelitigation in as little as thirty days or less, cases that go to trial can last up to two years or more. On average, most cases that go to litigation probably last at least a year. What Do I Have to Show in Court? In a lemon law case, a consumer must usually present evidence of the following things to the court: Continue reading Chapter 12: Litigation (Page-13) 
Shifting the Burden of Attorneys’ Fees Some lemon laws, including California’s, award attorney fees to a consumer who wins a case, but not to a manufacturer even if it successfully defends itself. This is called a fee-shifting provision, because it shifts the burden of attorney fees to one party only. Fee-shifting provisions put consumers on an equal footing with manufacturers. They create an incentive for attorneys to represent consumers, knowing that if they prevail they will be paid for their efforts. The law must serve all the people, rich and poor alike, and not just massive corporations that can afford to keep attorneys on retainer year in and year out. An award of attorneys’ fees in such cases is the great equalizer in the lemon law. Continue reading Chapter 12: Litigation (Page-12) 
The traditional contingency agreement does not work well in a lemon law case. The consumers have to give up a portion of their recovery, which is hardly fair. And, because nowadays an average vehicle costs only about $25,000 to $30,000, the lawyers get a fraction of the work they actually invest in the case. It is hardly fair for consumers to end up with less than they paid for their vehicles. For example, if the agreement were for one-third of the consumer’s recovery, and the value of the defective vehicle were $27,000, then the consumer would receive $18,000, and the attorney would be paid only $9,000. Under a contingency agreement, neither consumers nor lawyers get what they deserve. Continue reading Chapter 12: Litigation (Page-11) 
Attorneys’ Fees: Can I Afford to Sue? Whenever legal issues arise, ordinary people generally have the idea that attorneys’ fees are unaffordable. Once, only wealthy people and corporations could afford to pay the hourly rates of attorneys. Under the lemon laws in many states, this is no longer true. There is nothing more powerful than a person who knows he is right, and who will not back off from that position. Many lemon laws make it easier for purchasers to sue corporations by allowing them to recover court costs and reasonable attorneys’ fees. This means that if the manufacturer loses a lemon lawsuit, it may have to pay the consumer’s costs of bringing suit, including lawyers’ fees. Continue reading Chapter 12: Litigation (Page-10) 
Beware of good deals. The manufacturer knows what you are entitled to under the lemon law, but it is still watching the bottom line. Every dollar it doesn’t pay you is a dollar saved. The manufacturer may make you a verbal offer that sounds just like what you want to hear. Never accept any deal that is not in writing. Otherwise, when it comes time for the actual settlement, the manufacturer may claim that it never promised what you say it promised. The manufacturer is lying, but it is very difficult to prove when you don’t have anything in writing. If, at the time of the verbal offer, you ask for it in writing and the manufacturer refuses, it was never a serious offer. Continue reading Chapter 12: Litigation (Page-09) 
This is particularly common if you send a notice without an attorney. The manufacturer may think it can get away with this because of your inexperience. Don’t listen! You will get the glad hand, followed by no real action. Or you may be offered another repair. Some states require you to allow the manufacturer one more repair attempt after you have given written notice. Other states, like California, do not. You may be offered a certificate toward the purchase of another of the manufacturer’s products. Continue reading Chapter 12: Litigation (Page-08) 
The following documents may also be useful: • Any photographs or videotapes you may have made of the problems with your vehicle The old adage of a picture being worth a thousand words is really true. Notifying the Manufacturer Continue reading Chapter 12: Litigation (Page-07) |
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