Lemon Law - When You Need the Expert

Lemon law cases follow a certain sequence, as do most other legal matters. Roughly sixty five percent of the time a lemon law case never reaches the litigation stage. These cases are handled in what is called prelitigation.

Phase I: It goes roughly like this. Joe Jones buys a new vehicle: Ford, Nissan, BMW, it doesn’t matter which kind, they all manufacture lemons; some more than others. Joe drives the vehicle for a month or so then he notices that whenever he hits the brake, the steering wheel shudders and the front end has a tendency to pull to the left of right. Various other things are wrong with the vehicle, but none that are serious or life threatening.

Joe takes the vehicle back to the dealer where he purchased it. Let’s back up a step. He calls them to make an appointment. Maybe they play games, like making him wait two weeks, or maybe not. At the dealer, as soon as he explains the problem to the service writer, they know exactly what’s going on. His isn’t the first vehicle brought back for this problem. Besides, soon after this vehicle came out, the manufacturer issued a Technical Service Bulletin (TSB) describing the problem and some things that might be done about it.

By the way, the manufacture did not send the TSB to Mr. Jones. They never do. Unfortunately the problem is a design fault, so no matter what the dealership does, they can’t fix the problem without replacing the entire front end, redesigned to correct the problem.

Remember, anything, any problem that looks like it can’t be fixed is going to be hidden. It’s going to be hidden because the one thing the manufacturer does not want is for the problem to become a recall. It is sadly true that manufacturers have knowingly allowed cars on the road, whose repeated defects endangered the driver and his or her passengers, rather than mess up their financial bottom line. About the only way a manufacturer will ‘voluntarily’ fix a problem of this sort is if the National Highway Safety Transportation Agency (NHSTA) forces them to by issuing a recall.

So, the technician goes for a ride in Joe’s vehicle. He comes back and says something like, ‘no problem found’ or ‘the vehicle is operating as designed.’ Imagine the owner’s disgust and disbelief at being told the vehicle is operating as designed.

Consumers are not near as stupid as the people at the dealerships seem to think. Joe knows very well that his vehicle shouldn’t shake and dive to the left when he hits the brake.

This is just the opening round. The contestants are sparring, throwing a few jabs, bobbing and weaving, feeling the opponent out. The dealer knows that probably 50% of owners don’t really understand much about modern automobiles, and they will be able to get away with whatever they say. If, for example the owner came back ‘in their face’ as we say in America, perhaps the dealership would sing another tune. Then the owner might find out about a Secret Warranty; but that’s another article, and it’s another way to avoid that nasty old recall.

The dealership may make an effort to fix some of the minor stuff just to keep its credibility as an organization devoted to the well being of its customers.

Now we advance into the seemingly endless round of trips back and forth to the dealership as Mr. Jones tries to get the problem with his front end fixed. It’s pretty darned scary to be driving down the freeway at seventy and have the vehicle shake so hard it feels like it is going to fall apart, or for the vehicle to dart to the left lane like a turkey avoiding the axe on Thanks Giving Day.

Next time he brings it in, the dealer agrees that there is minor braking/shaking problem. What a revelation! Joe has been saying this all along. The dealership analyzed the possibilities and come up with the cause: the wheels are out of alignment. They realign the wheels. Or maybe the service writer gives out some garbledy gook about ‘run out.’ We have even seen, for this exact problem, where the dealership contended that the problem was caused by the way the owner drove. This accusation was entirely unsupported by data. It was in fact absolute horse dirt, but dealers and manufacturers understand the value of the big lie, boldly professed.

Phase II: Five more trips to the dealership, trying to get this problem fixed without result and Joe gets a lawyer. Joe sends all of the paper to his attorney, especially the repair orders. The attorney and his or her staff interview the potential client and reviews the repair orders carefully. At some point they determine that Joe Jones has a good case per the requirements of that particular state’s lemon laws. At this point we are still in what is called prelitigation.

The attorney drafts a demand letter (this is a letter that spells out the legal reasons why the manufacturer should buy back the vehicle or provide a replacement and the vehicle defects, which make the vehicle a lemon, plus the financials if it is to be a refund. If it is to be a replacement the settlement data is spelled out. The demand letter is sent and the manufacturer has approximately thirty days to respond.

Phase III: If the manufacturer wants to settle the case, their return letter will state their offer of settlement. Many times this will be very close to or what the attorney proposed in their demand letter. Other times the manufacturer may make a offer so ridiculous that even the most dour of individuals would fall to the floor laughing. These offers will of course be rejected and the attorney will encourage them to make a serious offer.

The Expert Phase: Another option is that the manufacturer rejects the attorney’s demand. When this occurs, if the attorney thinks it is a strong case that can be won at trial, the case is transferred from prelitigation to litigation. One of the first things that usually happens at this point is that an appointment is made to have the vehicle examined by an expert. Anyone who has watched the assorted crime dramas that proliferate on the TV networks will remember that at some point the experts always appear. In these dramas, usually it’s some blathering psychiatrist doing his witch doctor thing or a forensics expert discussing the grooves and lands in a rifle barrel.

An expert may keep the owner’s vehicle for as much as a week, especially where it is necessary to drive the vehicle under varying conditions to be certain the problem exists. The expert writes a report and it becomes a part of the case file. If the expert verifies the problem, this information may be presented to the manufacturer and they may decide to settle straightaway or continue fighting. Either way, if the expert verifies the problem, it is a good thing for the owner.

At some point the Vehicle manufacturer may want to bring in their own expert, after which it can become a case of dueling experts.

The cost of experts is usually born by the client, however when the case settles, if it settles in the favor of the vehicle owner, the expert costs are recoverable in litigation.

The thing to remember is that manufacturers are going to do everything possible to make the vehicle owner give up and go away. It is absolutely important that the vehicle owner keep this in mind as the weeks drain away. The manufacturer is counting on wearing the consumer down like water on dripping on stone, and at about the same pace.

Experts are part of the process. It is our experience that the experts we use are professional and tell it like it is. If the client’s defects are real, the expert will verify it, even if they are intermittent and report on it. If the defects are not verifiable or weak, the expert will verify this also. This is good for our client and it is good for our firm. We don’t want to lose because when we lose our clients lose and this is a very bad thing.

If you find yourself in a position where an expert is needed, whether it is with Norman Taylor & Associates or with another attorney, tell it like it is and the expert can help you win.