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.
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)
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.
• Any photographs or videotapes you may have made of the problems with your vehicle
• Evidence of payments made, including statements from your lender and canceled checks
• DMV registration
• Receipts for towing, rental cars, storage, and other incidental expenses
The old adage of a picture being worth a thousand words is really true.
From my experience, most lemon law cases are settled without the need to take the manufacturer to court. Only 5-10 percent of lemon law cases go all the way to trial. The other 90-95 percent are settled either during litigation or before it.
The first question of course is to determine if your vehicle is legally a lemon.
When you consult an attorney, the first thing to decide is whether your situation meets the standards of the applicable warranty laws. In other words, is your car legally a lemon? Continue reading Chapter 12: Litigation (Page-06)
“Mr. and Mrs. Rodriguez, you have a strong case.
Would you prefer a refund or a replacement vehicle?”
Selecting an Attorney
The practice of law, like medicine and science, is broad and specialized. You can find an experienced lawyer who specializes in the lemon law through the telephone directory or your local Bar Association.
If you have access to the Internet, there are several services that can help you locate an attorney for your specific needs in your area. These days, many attorneys have their own Web sites. If you do a search for lemon law or lemon lawyers on the Internet, you should find help. Continue reading Chapter 12: Litigation (Page-05)
Arbitrations waste time and money. Consumers cannot grasp the number of different ways arbitrations can go wrong. Even if they win, they rarely get the replacement or refund they deserve.
If your state law does not require you to participate in an informal dispute resolution process, I recommend that you avoid it.
Before Litigation
Once you have decided to pursue your rights under the lemon law, it is important that you seek legal advice as soon as possible. You may think that I am saying this because I am an attorney myself. I am an attorney, but it does not change the fact that an attorney’s assistance can be invaluable, even before filing a lawsuit. Continue reading Chapter 12: Litigation (Page-04)
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