A recent pair of California lawsuits has caught the attention of the whole country because –at least at first glance — each case presents an irresistible tale of triumph in a battle between the little guy and the giant.
In the first, Heather Peters, a California Honda owner, opted out of a pending class action suit against the car company based on alleged defects and misleading promotions regarding its Civic Hybrid model. If Ms. Peters had not opted out, she might have become eligible, eventually, to receive a few hundred dollars in cash and some vouchers toward the purchase a new Honda. This was the settlement that had tentatively been approved for each of roughly 200,000 plaintiffs in the class action suit.
Heather, who had paid thousands more for the hybrid versionl of her Civic, , thought this was not enough to compensate her for her losses. Instead, she brought her own small claims suit against the car company. She won the case and was awarded $9,867 in damages. This was just shy of the maximum allowable award in small claims court under California Law — $10,000.
The second recent small claims success story to make national news was smaller but no less impressive. This one, too, was brought in Californiat where Matt Spaccarelli, a man who had purchased an unlimited data plan as part of his cellphone deal with AT&T, found that his service had been “throttled” — slowed to a crawl once his usage reached a certain arbitrary level. He, too, won his case and was awarded $850 by the small claims court. Not exactly a life-changing sum, but enough to buy a bit more phone service and, more importantly, to send a message that unlimited data should mean just that — unlimited.
If only that were the end of the story. Unlike Connecticut, California allows appeals from the judgment of small claims courts. According to the AP, At&T announced its intention to appeal Mr. Spaccarelli’s judgment as soon as the ruling was handed down. Ditto for Honda when Ms. Peters won her case.
So, with no appeal option in Connecticut, could it work more smoothly here? Not exactly. While Connecticut does not allow appeals from small claims judgments, it does provide an option whereby defendants sued in small claims court may file a motion to transfer their case to the regular Superior Court docket before it ever gets heard. Not only does this restore the option for appeal but it also slows down the process considerably and opens up the possibility of trial by jury which makes prosecution more difficult for non-lawyers.
On the other hand, as these two cases demonstrate, pursuing legitimate consumer complaints through the small claims process can catch the attention of the consuming public and of the offending company and thus exert pressure for reform. Sometimes it can even result in a simple victory.
In the Honda case, the plaintiff happened to be a retired lawyer. This undoubtedly came in handy in strategic planning. Ms. Peters was prepared with plenty of admissible evidence to prove her claims regarding gas mileage and had even lined up a witness described as a Honda whistleblower.
Ms Peters helped along the publicity buzz that grew out of the case by publicizing it before the hearing. This drew coverage from a variety of far-reaching media including NPR, Fox News, USA Today, The Los Angeles Times and more. She also launched a web site to encourage other affected Honda Civic owners to follow her lead by opting out of the class action and filing suit on their own. Ms. Peters even re-activated her law license in order to help other plaintiffs prosecute their cases.
How this will turn out for Ms. Peters and for other Honda owners who did not opt out by the February 2012 deadline remains to be seen, but one thing is certain — Ms. Peters managed to deliver a stinging public relations blow to the company that will sap some of the sweetness from the otherwise stunningly favorable settlement they had so far achieved in the class action suit.
The effect of Mr. Spaccarelli’s small claims win on other AT&T subscribers will be less dramatic. This is because, as part of its subscriber contract, AT&T precludes both class action lawsuit and individual suits in courts of general jurisdicion by its customers — a clause previously upheld by the Supreme Court, according to Boston.com.
Still, depending on the amount of publicity the case generates, this could theoretically be a double-edged sword for AT&T since it has, itself, ruled out the opportunity to deal efficiently with large numbers of claims in the context of class action litigation or to play hardball by moving cases out of small claims. From the point of view of the consumer, though, this means that AT&T has less incentive than Honda to fight individual cases commenced in small claims courts — potentially good news for consumers.
For those who opt to pursue their consumer complaints through the small claims system, it is worth noting that rules differ greatly among states. In Connecticut, for example, the maximum recovery in small claims court is $5000 although the cost of filing the suit is only $75 — less than in California.
Moreoer, lawsuits are not the only route to vindication for disgruntled consumers. Each state’s office of the Attorney General has forms and procedures for filing consumer complaints. Consumers need to be aware that by filing an official complaint they are normally consenting to be called upon to act as a witness in any action brought by their state as a result of the complaint.
Many Connecticut residents may remember how , in 2003, New London native, Casey Neistat and his brother Van produced a 3 minute video calling attention to the problem of iPod’s short-lived irreplaceable battery and Apple’s unsatisfactory response to their personal complaints. According to Wikipedia, the video received more than a million hits on the Internet in its first six weeks and soon thereafter caused Apple to announce a new battery replacement program for the device as well as an extended warranty.
This is just one more example of how one or two individuals willing to make waves can lift up millions who find themselves in the same boat.
The mission of the American Bar Association’s Committee on the Delivery of Legal Services is to make courts and the justice system more accessible to everyone. These days, the Committee’s work has become exponentially more difficult because, at the same time more and more individuals lack the income and resources necessary to hire lawyers, courts – including courts in Connecticut – are increasingly underfunded. Last summer, Connecticut’s Chief Administrative Judge, Barbara Quinn, made the scope of the crisis abundantly clear in her report to the legislature. In it, Judge Quinn outlined a myriad of across-the-board cutbacks made necessary by severe cuts in the budget of the judiciary affecting every facet of operations in the State’s courthouses.
This means that judges are increasingly overworked, courtrooms are increasingly understaffed, and the pressure to settle or streamline cases is stronger than ever. Rambling, unfocused hearings in which litigants are unprepared and proper procedural groundwork has not been laid, waste precious court time and cannot be accommodated. While Connecticut, like most states, makes an effort to provide document preparation and other basic services to support to self-represented litigants, those programs are also stretched to the limit. Law libraries in many parts of the state, once a front-line resource for pro se litigants have closed due to budget cuts making matters even worse.
Faced with this reality across the country, the ABA Committee on the Delivery of Legal Services has made recommendations designed to make it easier for lawyers to “unbundle” their services in order to make legal support and assistance more available to individuals who cannot afford to retain a lawyer to provide comprehensive representation in their cases.
In the course of representing a client in any type of litigation, lawyers perform a wide variety of services. These include drafting and serving pleadings, collecting evidence, analysing cases and setting goals, drafting settlement offers, developing trial strategy, writing briefs, and arguing on behalf of clients at hearings and trials.
When a client retains a lawyer to prosecute or defend a lawsuit, the lawyer typically files a document known as an appearance, and thereafter becomes responsible for performing any and all of the functions necessary to bring the case to a conclusion. As part of that process, the lawyer remains available to consult with the client at all steps of the procedure and to provide advice and guidance whenever it is needed. The lawyer also becomes responsible for keeping the client informed about new developments in the case, and of upcoming events.
Because the scope of full representation is so broad and comprehensive, lawyers in most types of cases — with the exception of injury, accident and malpractice cases — charge clients a retainer designed to cover some or all of the anticipated time and expense that will be devoted to the case.
For too many people in this bad economy, the cost of full representation may be out of reach. For those individuals, the choices are limited. They may choose not to participate at all in the litigation or may enter a so-called pro se appearance, signalling to the court that they will be representing themselves. At a minimum, this ensures that they will receive notice of scheduled hearings and other events in their cases.
The unbundling of legal services is designed to provide a middle ground for those individuals. The growth of so-called virtual law offices is part of this trend. Many of these businesses are little more than document preparation services while others offer broader and more skilled support.
Brick and mortar law firms are increasingly willing to offer limited services to clients who must represent themselves in court. The most straightforward unbundled service is document preparation at the commencement of a case. While it may be convenient to pay for such service, the bare-bones documents needed to start a lawsuit are generally available at no cost through each state’s official judicial website or at the office of the appropriate court clerk.
The more difficult part of any case comes after the initial papers have been filed. Unbundled services beyond the opening salvos of a case include case analysis, preparation of litigation checklists, procedural guidance, ghostwriting of legal memoranda and briefs, review of proposed agreements, preparation of subpoenas and document requests, and coaching in preparation for depositions or hearings. None of these services are generally available through court-sponsored pro-se assistance programs since they fall under the category of legal advice. Under existing rules, court personnel including pro-se assistants, clerks, judges, and others are precluded from offering legal advice of any kind. Mere document preparation assistance does not cross that line, but more substantive assistance does.
Unfortunately, most states still do not allow lawyers to file so-called “limited appearances” that would allow them to argue at a hearing on behalf of a client without committing to full ongoing involvement in the case, so court appearances generally cannot be part of the unbundled services lawyers are able to offer.
For those who cannot afford to have a lawyer speak for them in court, it is still worthwhile to seek out experienced counsel who will meet with them to perform some or all of the other services that go into case preparation and development. By unbundling those services, lawyers can perform specific tasks on a flat fee or hourly basis depending on the needs and budget of the client.
In the past, lawyers have been reluctant to offer services related to litigation on a piecemeal basis. This is because no amount of quality document preparation or coaching can guarantee that the client will achieve satisfactory results. For that reason lawyers worry that based on their limited involvement they may be blamed for difficulties or setbacks — whether forseeable or not — that the client might later encounter. Now, though, with the growing support of both the bench and bar oversight bodies, lawyers have become more willing to work with clients in limited capacities as long as those limits are carefully outlined in an appropriate engagement letter.
For anyone otherwise facing a lawsuit alone, where the stakes can be high, unbundled legal services can be a life-changing investment.
According to a recent article in USA today, Connecticut groups have joined a growing movement to revamp alimony statutes that some consider out-dated and punitive toward the payors of alimony.
Advocacy groups, such as New Jersey Alimony Reform, cite anecdotal reports of onerous orders under which individuals have been forced to pay lifetime alimony despite job loss, failing health, or improvements in the financial circumstances of the recipient.
Reform proponents want, above all, to limit the duration and to cap the amounts of alimony by creating formulas tied to the income of the parties and the length of the marriage.
Opponents argue that strict formulas are likely to cause more injustice than they cure especially since judges already consider a range of equitable factors when fashioning alimony orders and need to be able to tailor awards to the needs and circumstances of each family.
In September of 2011, Massachusetts Governor, Deval Patrick, signed into law a new act that provides, among other things, specific term limits for alimony. The Massachusetts law also limits the amount of alimony to no more than 30% to 35% of the difference between the parties’ gross incomes at the time the order is issued. Under the statute alimony can be set below these caps especially if the recipient does not establish sufficient need. The new Massachusetts statute also allows the court to terminate, suspend or modify alimony upon a finding that a recipient is cohabiting with another adult — action that has long been permitted under Connecticut law in any case.
In contrast, rather than capping alimony awards, the Connecticut alimony statute mandates a case-by-case analysis of the issue based on a long list of factors including the length of the marriage or civil union, the causes of the breakdown, the age, health, and occupation of the parties, as well as their respective skills and earning capacities. This allows the court to project how the parties are likely to fare in the future, relative to one another, depending on the amount of alimony ordered.
In Connecticut, the group at the vanguard of the movement for alimony reform maintains a web site that is surprisingly non-specific about the ways in which members consider the existing Connecticut statutes to be defective. Instead, the group invites members to post so-called “horror stories” about their own cases.
To the extent that reform groups suggest that non-modifiable lifetime alimony is the norm, at least in Connecticut, they are misleading potential recruits.
Because Connecticut law generally allows for modification of alimony when the financial circumstances of the parties have changed, an agreement or order to the contrary must specifically preclude modification. While non-modifiable alimony orders are not altogether uncommon, they are most often the product of negotiations between the parties through which the recipient of alimony accepts a lower amount in exchange for a promise that the alimony will continue for a specified period of time.
According to the USA Today article, a bill concerning alimony reform is likely to be presented to the Connecticut General Assembly this year.
Because the issues are not simple, any effort at reform must be carefully considered. New legislation, if it is to bring positive change, should be thoughtfully drafted in a way that allows courts to address the legitimate concerns of both parties. Any reforms designed to protect the interests of one group without also safeguarding the rights of another will not satisfy that requirement, nor will changes that merely bring uniformity into the process without balancing the need for certainty with the overriding goal of treating all parties fairly.
As always, we welcome your comments.
Full-blown custody and access disputes cost plenty – not only in dollars — but in the toll they take on families. Once in a while, when one parent is truly neglectful, abusive, or struggling with substance abuse, there is no choice but to do battle in the courts if that’s what it takes to protect the children. Relocation cases — especially when the proposed move is motivated by malice – are another situation where resort to the courts may be necessary to protect the parent/child relationship. However, too many custody and visitation cases have more to do with a power struggle between embittered parents than about the real needs of the children.
Experienced divorce lawyers are familiar with a pattern that develops when a negotiation over custody or visitation goes toxic. Typically, one or both parents reject a suggestion of the other almost as soon as it is made. Soon it becomes clear that the discussion cannot be shifted away from notions of winning and losing. Any concession – agreeing to pitch in for more than half of the transportation; allowing an extra overnight visit; permitting an out-of-state vacation – is viewed as a defeat. These reactions have nothing to do with fairness, let alone the best interests of the children. Instead, they are issues of vindication.
Another hallmark of a toxic custody or visitation dispute is that the discussion turns, inevitably, to adult issues. Unless the cause of the breakdown of the marriage has also caused a breakdown of the father/child or mother/child relationship, it should play little part in negotiations over a parenting plan.
Often, lawyers’ efforts to diffuse these disputes and to re-focus on the needs of the children are met with distrust and frustration – a feeling that the lawyer is indifferent to the pain that the offending spouse has caused. In truth, lawyers are legitimately concerned about how their client will be perceived by the court if they fail to engage in reasonable compromise.
Judges have little patience for these fights because they have been trained to understand that children are the ultimate losers. Commonly, parties who enter the courtroom convinced that a judge will share their indignation over a spouse’s behavior, come away – even before a decision has been rendered – with a stunned realization that it is they who have attracted the sternest reprimands from the bench.
Some time ago, Connecticut family judge Elaine Gordon produced a video for parents who are thinking of using the courts to settle their custody and visitation disputes. In it, she sites an alarming study identifying a long list of lasting mental health problems that beset children and adults whose parents have gone to trial on custody issues. The video appears on Connecticut’s official judicial website and is well worth a look for anyone considering taking a child-related issue to court. You can bet, if you do, that your judge has seen it as well.
The lesson here is to make the strongest possible effort to achieve a healthy parenting plan for your children, but to do so, whenever possible, through serious and selfless negotiations and to set a goal to reach agreement before trial.