20 September 2020

Small Claims 3


Hal 2001
Home Automation Interface
Last month, I told you about purchasing expensive name brand home automation that madly malfunctioned. The dealer/installer and the manufacturer’s tech support added insults to injury… literal insults, telling me the device failure was my fault. I was stupid. I was annoying. I misrepresented or misinterpreted the sales literature. I was trying to cheat them into getting something for nothing. Surely their mothers wouldn’t have taught them to behave like that.

So what would an American do? I took both parties to small claims court.

Perhaps it’s a character defect, but I’d have loved to witness the deputy striding into the corporation’s Tallahassee headquarters to serve the complaint. No, that’s not quite true. I really wanted to see the consternation of the so-called customer support guy when faced with a subpoena to produce their tech line audio tracks “recorded for training purposes.” Finally! A useful purpose for those things.

First Contact

A few weeks after filing, I received a telephone call from California, a vice president within the conglomerate’s North American legal department. My little case garnered more attention that I’d anticipated. He courteously enquired if I’d hired counsel and then discussed the case.

I was mindful to guard my tongue. Attorneys and competent interrogators know people feel a need to elaborate. Therein lie traps for the unwary. I simply laid out the facts without revealing how much proof and documentation I’d gathered. When he’d question one aspect or another, I simply said I was prepared to demonstrate this or that.
He asked if I’d vented on-line. I had not.
He asked if I would allow their technician to inspect the unit in situ. I was.
He asked if I was willing to settle. I was.
He asked if I was willing to settle for only a replacement. I wasn’t.
He asked if I was willing to continue the conversation. I was.
While cordially but carefully phrasing regrets, he explained I was unlikely to prevail on several accounts, such as loss of income and violations of sharing personal information. Likewise he predicted a judge wouldn’t award me expenses, but might award them attorneys’ fees. He was surprised to learn his conglomerate’s web sites offered no way to opt out of the distribution of shared personal information.

Leigh in pod capsule
HAL Gone Bad

A technician sent by the vice president arrived. He confirmed everything I said and more. The device wasn’t merely a brain-dead dud, it was a hulking, marauding, unpredictable Frankenstein of a dud.

He verified the firmware serial number 00001. My court filing argued if this were accurate, it meant the assembly line hadn’t yet learned to build this new machine. And if it wasn’t true, then it opened scarier possibilities. A user in California or Calcutta might use their app and suddenly find themselves inside my house.

Mediation

Florida’s Small Claims Courts require pre-trial mediation. This mandatory session takes place prior to a trial in the hope the parties can reach a resolution and avoid tying up the court’s time. I was prepared to back down twenty percent or so, but little more.

Many court-appointed mediators are retired attorneys. They know what they’re doing. The one assigned to my case was pleasant and professional. When the opposing attorney stepped out of the room, he complimented the case’s preparation and suggested, should mediation fail, I might want to move for a jury trial rather than rely on the stricter view of a judge. Good point.

The conglomerate sent down an attorney from Tallahassee. He turned out cordial and likeable. However, he informed the mediator their California Vice President of Legal suggested the gadget wasn’t as bad as claimed, and they’d settle for no more than a replacement product. The lawyer gave an impression he’d urged California to compromise, but they were hanging tough.

This lawyer spent seven hours driving and three hours in the courthouse just to say no. He did what he was told to do, but he didn’t appear pleased as he packed to leave. We shook hands. He said he’d stay in touch and departed on his 3½-hour journey back to Tallahassee.

The Other Party

The independent dealer/installer didn’t appear at all, forfeiting his part of the case. Before leaving the courthouse, I petitioned for a summary judgment.

My intent wasn’t to crush the little guy, crappy as he was. What he had in mind by not appearing, I don’t know, but he panicked. He begged me to settle for a lesser amount, saying he could afford little, and then named a figure more than I would have asked.

I didn’t need an invitation and he had acted a right ass. “Sure,” I said. “Have it to me before the hearing, then I’ll ask the court to dismiss.”

People's Court letter
As Seen On TV

Besides court filings, I received a letter with a charming picture of People’s Court Judge Marilyn Milian. Oops, not quite– it was from Lori Mooney, a producer for The People’s Court. They wanted my case on television.

Bad enough I burden SleuthSayers with my laundry, but I’m too private to air it on national television.The dealer’s opinion was immaterial, but I felt certain the conglomerate would not risk publicly broadcasting the problems in their fancy flagship device. They might win the case but lose their appeal, so to speak.

Two more People’s Court letters arrived. They guaranteed I’d receive the money sought if I won the case. They’d pay for my time, which as a writer is about 2½¢ per minute or word or some such. They’d pay my travel expenses. I pictured a coronavirus motel off a Connecticut interstate. I ignored the offer, but I didn’t blame them for trying. It’s not every day a little guy takes on a $2.3-billion conglomerate.

The opposing lawyer wondered how our case came to their attention. I didn’t know, but I hazard producers might offer court clerks rewards or bounties to bring interesting cases to their attention.

Countdown

The court date approached. The Tallahassee attorney said he regretted to tell me California decided to play hardball. Would I accept one last offer of a replacement before they prepared for court? Umm, no but thank you, I said.

Meanwhile, I reminded the absentee dealer I hadn’t received a check or money order. He said negotiations to sell his company had kept him busy. The toad had set the terms of the agreement and he wasn’t meeting the conditions he set for himself.

Subpoenas
Subpoenas are writs or instructions to bring to court a person or thing. A subpoena ad testificandum commands the appearance of a person. A subpoena duces tecum commands the appearance of a thing.
I checked on the subpoena duces tecum for the tech support’s recordings. I gathered company sales brochures, went over my notes, and spent hours creating visuals to explain the technology and why their product failed. Wifi inside the courthouse was next to nil. Accordingly, I loaded their advertising videos on my computer so they could be played without internet.

The date neared. Their lawyer phoned. Would I accept a replacement plus a little (very little) extra to ship the old unit back to them for study? I declined. I contacted the dealer, who said he was travelling out of state and could I wait? He couldn’t get on-line. Use priority mail, I suggested.

The date grew closer. The lawyer enquired if I’d accept a replacement, deinstallation, reinstallation, removal of the old unit to their lab, and a bit more money? I told them they were getting closer.

The date loomed three days hence, then two days. Would I, asked the attorney, accept pretty much all I’d sought if we could finalize an agreement in the next few hours? I went, “Mmm,” drummed my fingers and said, “Of course. That’s all I wanted.”

Thus began a flurry of emails and overnight posts. I had no way of knowing whether the two corporate lawyers were a case of good cop / bad cop, but I believed the Tallahassee counsel encouraged the California Legal Department to stop with the hardball and settle.

I called the twisty dealer and informed him I was out of patience and he was out of time. He was in the hospital, he said, palpitations of the pump due to the stress of this case. Just deliver a check, I said, then you’re done.

In the final hours before the hearing, the conglomerate’s attorney prepared motions to dismiss their part of the case. In our non-disclosure agreement, I consented not to bad-mouth their company. Not a problem– I didn’t hate them, but I refused to accept failure of responsibility for a failed product. One tech support guy could have solved the problem a year earlier.

In the middle of the final exchanges, the phone rang– the dealer. He suddenly remembered he had a wife and she could deliver a bank draft to me in the remaining ninety minutes.

Closing the Case

The dealer’s wife squeaked in with the check. That released him from further obligation.

Several days later, a different installer phoned. Under corporate instruction, he was ready to swap out the defective unit for a… he sounded puzzled… lesser model?

Their company’s flagship ‘smart’ gadget couldn’t be trusted, but their top-of-the-line ‘dumb’ models had a good reputation, I worked out a deal to trade down and then provide my own intelligent controller. The installer swapped gadgets, I attached a new electronic brain, and that’s worked well since.

I emailed the California vice president and the Tallahassee lawyer, thanking them for resolving the problem. I love almost being a Southerner. The email to the Florida lawyer might have been a bit more genuine.

And Now…

Smart appliances, intelligent gadgets, and home automation are running smoothly. The homestead feels secure except… Well, a few weeks ago a burglar attempted a break-in. He made it into the garage. The system notified me and I notified the police. They got him. The state prosecutor loved the videos of the baddie picked up by multiple cameras.

I’ll reveal more about this after the burglar hearing. You won’t believe his last name.

12 comments:

  1. Leigh, I love your story, but I feel your pain. I've taken several entities to court. Won every time because I was prepared and didn't file unless I thought I had a good chance of winning. And I also heard from People's Court, back in the Judge Wapner days. And I (and my partner) went on. We were trying to do a low budget film and sued a "supplier". And we were sitting around joking wouldn't it be funny if People's Court called. And I swear, they called an hour later. They look at the filings. And we decided to go on, even though we knew that, even if she/supplier lost, she'd get paid for being on the show. And the show, if I recall correctly, would pay the damages, but I could be wrong on that. It was a long time ago. Anyway, we figured why not? And we won. And hopefully she lost business because of it.

    Anyway, glad you got your situation straightened out.

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    1. Wow. Good story, Leigh. But are you sure you went through arbitration, not mediation? courts often require or suggest mediation before trial to try to get the parties to come to some agreement. Arbitration, as far as I know, is a process where an arbitrator acts as a type of judge. The arbitrator's decision is final. I've never heard of a situation where people go to arbitration before they go to court.

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    2. Wow, Paul. Do you still have video of it? That would be interesting.

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    3. Barb, you're right. The court officially refers to 'pre-trial conference'. The 'neutral third party' may or may not have been a qualified arbitrator, but he definitely was our mediator. Thanks for pointing out this error on my part. I'm updating the text (if Blogger will allow it!) to reflect your correction.

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  2. What a saga! Congratulations on surviving, winning, and getting pretty much what you wanted.

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  3. Thank you, Eve. I learned a lot throughout. I couldn't hope to offset the knowledge and experience of the corporate attorneys, so I focused on ways to explain my viewpoint and minimizing missteps. Whew!

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  4. Terrific story. The importance of perseverance pays off and a good lesson for consumers too ready to accept anything a company offers. And, that the little person can take on a corporation and win.
    Question, given you filed in Small Claims Court, wouldn't the filing be public record? Thus, the company's name would be known?

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  5. Thank you, Eagle. You are correct that the filing and response are public record. I believe the settlement agreement is not on file, only a memo and motion to dismiss. As you've noticed, I've tried not to hint at the product or the company in sticking with the settlement. Thanks for reading, Eagle.

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  6. Wow - I learned a lot about US law just reading this! We are much less litigious in We the North, but I sure would have stood my ground as you did, in this case! Wow again. I can't believe the money they spent on high priced peeps. They should have just done right thing in the first place, for Pete's sake!

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  7. I know, Melodie. As I was writing this, I was thinking I'm acting sooooo American.

    I suspect their corporate legal department viewed me as a bug to be swatted, but the longer it dragged on and the more I vested, the more I determined to hang in.

    Melodie, I've heard the provinces have small claims courts, but I don't know how similar they might be to US courts. You might have another article or even a novel– Goddaughter v MegaCorp.

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  8. Leigh, fascinating reading. Filing your own case in court can almost be compared to conducting self-surgery on some part of your anatomy while reading a text book on how-to-do-it. Lawyers love to dissect witnesses sitting in the hot seat, but you sounded well prepared in case it had gone that far. Kudos.

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  9. Thanks, RT. That is an excellent way of putting it. I'm glad it's over!

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