When you have a lemon law claim
Developing the lemon law case
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.
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.
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: