Assuming the reason you are on
this page is because you believe you have a lemon, the obvious
question is "What now?" The first thing of course
is to determine whether you have an automobile that qualifies
under your state's lemon law. 
Each
state has it's own lemon law so commenting on it in any great
depth here would be pointless.
Thinking you have a lemon and
actually having a lemon might be two different things. Just
because you have a problem with your car that cannot be fixed does
not mean that you qualify under your state's lemon law. You
must meet certain criteria including a given number of complaints
of the same defect, that began before the car reached a certain
point (such as 24,000 miles), and the car manufacturer must have
had adequate opportunity to repair the vehicle.
Be sure to document all of your
repairs, make notes as to the conditions that the car failed
under, how long it took to repair. Keep all original files,
make notes as to what was said by the dealer, and note what
requests you have made and when.
In most cases, you will be
required to write a formal letter of complaint and notice of your
lemon law claim to the car manufacturer. This is almost
always a complete waste of time, but you do have to go through it nonetheless.
If you skip any step in your state's law requirements, you may
find yourself with a dismissed case and having to essentially
start all over with the notification process and a long court
calendar.
Filing lemon law notices
The law always requires that you
notify the other party that you are claiming rights under lemon
law protection. The fact that you have brought your car into
the dealership numerous times does not count as a legal
notification. Essentially, this is a waste of time, but you
still must go through the process.
Your state lemon law will spell
out the method by which you must notify the car manufacturer such
as sending them a letter stating what the problem is and what you
want them to do about it. In this case, it is probably to
buy the car back from you or replace it.
As with any important legal
letter, you are well advised to send this certified from your post
office with a "return receipt requested". This
means the party on the other end must sign for it and is proof
that you sent the letter. Of course be sure to save a copy
of your letter.
The law always allows the other
party to send a response to your claim. This of course will
come to you in the form of a letter from the car
manufacturer. Essentially, they will deny your claim every
time. They will tell you that they have reviewed your claim
and are unable to do anything. This of course is their first
lie. They haven't reviewed a thing. They have no idea
who you are, what the problem is, or the circumstances of the
case. They merely gave it a weeks to make you think they
paid attention and then plunked your name into a form letter that
merely says "no".
Here's the deal. Car
companies put out so many problem cars that if they honored every
request under lemon law, they'd go broke. So their answer is
to honor none of them. They know that if they deny every
claim, probably 70-80% of cases will go away at this point with
most people believing that they really don't have a case.
Car companies also know that if they string out the process as
long as they can, the majority of the rest of the cases will also
go away because:
1) Many people won't come up with
the money to retain an attorney or will become scared of going to
court.
2) Others will simply decide that
going through the lemon law process isn't worth it and just sell
the car.
3) Something can happen to the
car, you will move to another city/state and have to start over,
or something else.
4) If they can delay it long
enough for you to put thousands more miles on the car, even if
they do make you an offer, it will be reduced because the car is
older and has been used more. If you put on another 30,000
miles and they settle with you for value, that is 30,000 more
miles that they don't have to pay for.
5) Most that go the distance will
settle for their attorney fees and a couple of thousand dollars.
Car companies understand that
time is on their side and if they wait it out, they can get rid of
about 95% of lemon law cases without even getting close to the
courthouse steps.
Car companies and lemon law
cases
Here's a secret. Car
companies do NOT want to go to court on a lemon law case.
The risk of going to court on lemon law far outweighs what they
risk in doing so. Here's why:
a) Defending a lemon law case is
expensive. By the time a lemon law trial is done, the car
company can easily spend $20,000 defending itself. These
cases are rarely done with their own attorneys so it is money out
of pocket. With that much money at risk, defending a lemon
law case is already costly, even if they win.
b) In most cases, lemon law
allows you to collect up to triple damages. That means that
if your car costs $25,000, they risk losing $75,000 in the hands
of a jury, plus their own attorney fees. Since they can
replace your car at cost AND recover some of their loss in selling
your old car, replacing your $25,000 car with a new one can cost
them as little as $10,000. Their choices are therefore to
risk losing $100,000 or settle with you at their cost for
$10,000. At a 10-1 ratio, settling looks pretty inviting.
c) Car companies do not want
lemon law publicity. Obviously, your case is not going to
make headlines in USA Today or the NY Times, but it still
registers as a precedent and can be picked up locally.
Public attention to a lemon law case risks more than a loss in
court. It can also represent loss in brand image and
therefore sales when new potential buyers dismiss buying their
cars because of the public attention.
Getting a lemon law attorney
After you have received your
notice of denial of your lemon law claim, it is time to see an
attorney. Any attorney can handle a lemon law case, but it
is preferable to find an attorney who specializes in lemon law
cases. They know the law already, they know the players,
they've been through the process before, and they understand the
bluffs that the car company will pull.
This is where most people bail
out on a lemon law case. You should be able to find an
attorney who will evaluate your case for free, but that's where
"free" ends. Good attorneys know that there can be
things that their clients won't tell them and others may simply
decide not to go through with the case. They don't want to
risk being left with their costs and time out of
pocket.
In other words, it is time to get
out your checkbook and put your money where you mouth is.
Expect to fill out a check to your attorney for $1500-3000 as a
retainer fee before your attorney will go to work for you.
If it goes to court, expect that you will also have to come up
with more money before doing so. Be sure to understand all
of your attorneys costs before you go any farther.
Your attorney will then write a
letter to the car manufacturer, basically stating the same things
that you wrote in your letter. Again, don't expect much of a
response from the car manufacturer. Chances are they will
deny any liability, state that they will honor problems under
warranty, and blame you for any problems. Don't be
discouraged. It's part of the game they play.
Upon receiving this reply, your
attorney will file the summons and complaint (lawsuit under lemon
law) against the manufacturer. Again, the manufacturer will
reply, only through the court systems, denying the claim. In
most cases, you should seek a jury trial. Car companies hate
this because they know that juries tend to be more sympathetic to
the plaintiff with a bad car than they do with the company that
made it and has been procrastinating in dealing with you.
They would prefer that the case be heard by a judge rather than a
jury.
Lemon law legal proceedings
When the lemon law suit has been
filed, both parties will agree upon a court date. However,
don't get your hopes up that your case will be heard on that
date. Car manufacturers typically get one or more
postponements for some contrived reason. In larger
jurisdictions, expect that the ultimate date of your trial won't
be for at least a year and possibly two or more from the time you
actually filed the lawsuit. Again, this is to be expected
and what the car manufacturer will do to hopefully make you go
away.
Discovery
Without a doubt, the car
manufacturer will at least send you an "interrogatory",
which is a long set of questions that will require much time to
complete and require that you provide them with a full set of
documentation.
In many cases, they will also
require a deposition. A deposition is a face to face meeting
that is recorded and where the opposing attorney gets to ask you
many questions. What they are chiefly after at this point
isn't to obtain any more information related to your car. It
is to obtain information they can use to limit their
liability. They want to know things like how much you think
your car is worth and to determine what kind of witness you will
make if the case went to court.
Tips to a successful
deposition: Keep your cool. Don't get excited or make
accusations, and definitely don't say things that you cannot
substantiate. Keep your answers short and only answer the
questions you are asked. Remember, this isn't
personal. It's about money.
Settlement conference/offer
If the car manufacturer believes
you have a legitimate lemon law case, do not look for them to give
you what you are asking. In fact, don't even expect them to
be reasonable. A settlement conference or offer is made for
one purpose and that is to make this thing go away and hopefully
very cheaply.
They are testing the waters to
see what kind of resolve you have, and to see if you are willing
to take the sure thing (though small) by offering you enough to
cover your attorney fees and maybe a thousand or two for your
trouble. They get quite a few people to bite on this because
people get scared of potentially losing in court. Expect
that you will have one or more offers before going to
court.
They are also hoping that your
attorney won't be confident enough with his/her litigation
abilities to go to court and will advise you to take the money and
run.
It is very rare that any lemon
law settlement offer would include a new vehicle, even though that
is what the law may let you have. It sets a bad precedent
for them. In addition to paying your attorney fees, they
will usually agree to cover the item under warranty for the life
of the car, or they may agree to buy it back from you for blue
book value or on prorated value of the vehicle based on the number
of miles you have.
Remember though that if they are
not offering to cover your attorney fees on top of this, you are
serious money behind. After delaying on this for a couple of
years and you putting on more miles, they will likely to offer you
a lot less than if they had settled with you in the
beginning. If they offer you $10,000 for your car because
that's the blue book value, and you have paid your attorney $3000,
then what you end up with is $7000, they get the car, and you have
to figure out how to buy an equal car for that amount of
money.
Your decision at this point is
whether to go to court or accept their offer. You have good
chances that you will get another settlement offer before going to
court, but you might not.
Lemon law in court
If all else fails, and despite
the reluctance of most car manufacturers to go to court with a
lemon law case, some do. They may figure they have a good
enough case, or they might believe enough in their own abilities
to confuse the court that they are willing to go that far.
Expect to get painted as an
unreasonable opportunist who is using a minor situation to go
after a good company with deep pockets. Look for the
opposing attorney to even make this claim to the court or to ask
you if you aren't just pressing your lemon lawsuit to get rich at
the expense of the car manufacturer. Don't get
rattled. It's a common tactic. Stick to the facts and
understand before you go into court why you are there and why you
have the right to demand what you are asking. When you are
sure of these things, this comes across to the court and they are
in your favor.
Here's a recap of why you
are suing under lemon law:
1) The car manufacturer through
their dealer/agent had no problem taking your money. You
negotiated in good faith for a car that was reasonably free from
defects, and that the company would and could make repairs that
are covered under warranty. You did not get what you
negotiated for. You got a car that has defects that they are
unable to fix. Filing a lemon law lawsuit is not personal,
they don't take it that way and neither should you when they
attempt to defend it.
2) The car manufacturer does
business in your state with the full knowledge of what the lemon
laws are. They understand that they will make a certain
number of lemons and they choose to do business with that
understanding. The fact that you are now suing them is a
calculated part of doing business, and they need not be exempted
from the law when something does go wrong. You are simply
suing for something they have already calculated a certain number
of losses.
3) It is the car manufacturer
that is being unreasonable. They know they will occasionally
produce a lemon, yet in no instance do they ever accept
responsibility for it without taking action on the part of the
consumer. You are simply taking the action that is necessary
for them to live up to the laws they agree to bound by when they
chose to do business with you
4) Assuming that you have a
legitimate case, the car manufacturer has neglected to act in good
faith by reasonably negotiating with you and forcing you to live
with the lemon car while they procrastinated and protracted their
legal obligations since they became aware of the
situation.
Lemon laws in your state:
