"get railroaded" = "be held to the terms of an agreement"
Some of the nastier contracts I've ever signed have been for various quasi-monopolistic phone companies. Is the reasoning that I should forego having telephone service because tiny-print-subclause #156a says they can ride me sideways if they want? Or should I haggle on the terms of contract w/ them -- do you think they're customer service rep. would be open to that? It seems small claims court is the place where these sorts of shitty business practices need to get ironed out, as it's one of the few places where business and customer have a change of ending up on relatively equal footing.
The Bronx case actually turned out all right, after a fair amount of stress. A Manhattan case, on the other hand, went the wrong way, and the Appellate Term (which is the special low-end appellate court they keep around for small claims court decisions and other miscellany) let it stick. The client wouldn't go for pushing it further.
As a matter of public policy, I do have to say that I don't think choice of venue clauses like the one I was enforcing should be valid for small claims -- if your claim isn't worth traveling out of state, you're SOL. But as a matter of NY law, they really are valid.
Yeah, but no one sees me working for Big Tobacco. I lurk in my office, writing things. On this stuff, I was standing up in court in front of about a hundred Bronxites, oppressing this guy.
Part of contract law deals with so-called "contracts of adhesion", i.e., big, one-sided contracts that no consumer ever reads or understands. The law in the US varies, but terms in such contracts that are "unconscionable" or "outside of the reasonable expectations" of the party that did not write the contract — i.e., a term so harsh that it would have stopped that party from signing the contract if he had known about and understood it — should not be enforced. But I don't think a simple choice of venue provision qualifies. LB?
Generally no, for small claims it differs state by state (it is pretty unreasonable to send someone a thousand miles to sue you for 500 bucks.) In NY, though, they're pretty unambiguously enforcable.
("Would have stopped that party from signing it" isn't really accurate -- it just has to be contrary to public policy.)
They let lawyers into small claims court in NY? Here in CA, you're specifically not allowed representation in small claims court; according to this page, if a corporation gets sued an employee, officer, or director has to show up to represent it. (So in-house counsel is allowed, but outside counsel isn't.)
They let lawyers into small claims court in NY? Here in CA, you're specifically not allowed representation in small claims court; according to this page, if a corporation gets sued an employee, officer, or director has to show up to represent it. (So in-house counsel is allowed, but outside counsel isn't.)
All my to test my understanding, please. In CA, if you're a huge company that has the major benjamins to burn keeping a pet lawyer around, you're golden in small claims court. If you're Pa Kent from Smallville Farming Supplies and you get taken to small claims, you're fuxx0r3d 'cause you don't have in-house counsel (who'd make as much as every single other employee put together, including yourself, Ma Kent, and son Clark who helps out stocking the high shelves) and you're not allowed to hire somebody?
The link in the post is to part two of the series. Part one, which sets some context, is here, while part three (today's, which I haven't read) is here. It should be noted that the focus of the series is not on how debtors are being "held to the terms of an agreement"; the articles repeatedly note that many of the people who find themselves in the system do, in fact, owe money, and do pay it. What the series is about is how a neglected and poorly administered part of the judicial system is exploited by some aggressive collection agencies to their benefit. That includes improper seizures of property, illegally obtaining payments from assistance checks, and, yes, railroading debtors in court. For instance, the series details how agencies provide out-of-date addresses to be used to send court summons; when the defendant doesn't show up in court, because they never received the summons, a judgment is entered against them, making the range of possible actions against them much broader. At that point, miraculously, the collection agencies head straight to the debtor's proper address. Of course, none of the above touches on those cases in which the debt isn't actually owed but the defendant ends up getting screwed anyway.
The question for me in reading it was, do these problems reflect a nationwide situation, or does Massachusetts have a particular bad problem? The second part at one point does say, if I remember correctly, that MA ranks poorly in this area according to some study (too lazy to find the point, sorry.) So some of it is local. But I'm not sure if LizardBreath's Bronx experience necessarily means what she thinks. Rather than indicate that Bronx judges are more conscientious or more likely to stick up for the little guy, it may simply mean they're more apt to jump to the conclusion that defendents must somehow be in the wrong. Which would make them more like those operating in MA than different (though I'd point out that the small claims courts discussed in the articles aren't necessarily run by judges--in one instance, the Globe found collection agencies lawyers running a court session.) Even with that speculation aside, the simple fact that the plaintiffs in LB's example were plaintiffs, with (presumably) their own representation--something few in the Globe series had, or could afford--makes the situations quite different.
Even with that speculation aside, the simple fact that the plaintiffs in LB's example were plaintiffs, with (presumably) their own representation--something few in the Globe series had, or could afford--makes the situations quite different.
No representation, which actually made my life more difficult. When a judge doesn't expect the person suing you to make any sense, because they aren't a lawyer, it's very difficult to prove that they're wrong. I still have unpleasant memories of standing there while a plaintiff waved around an old copy of the New York Post with an article about what awful people my clients were, and wouldn't explain what it had to do with anything he was suing us for.
But you're absolutely right that the plaintiff/defendant thing makes a huge difference. I'd readily believe that pro se defendants get pushed around in NY Small Claims, even though pro se plaintiffs get away with murder.
So besides seeing if there are enough potential plaintiffs similiarly situated to make a class action feasible, what options does the plaintiff (or plaintiff's lawyer) have when a choice of forum agreement is being enforced and the costs of travel are more than the potential judgment they could win? I guess you can still see if the defendant is willing to settle for some money.
Small claims mediation is awesome, I recommend anyone with the opportunity do it. People with the opportunity probably = no one here.
what options does the plaintiff (or plaintiff's lawyer) have when a choice of forum agreement is being enforced and the costs of travel are more than the potential judgment they could win?
About what you'd think. See why choice of forum agreements are so popular?
No representation, which actually made my life more difficult.
My mistake, and I understand what you mean. It must have been frustrating not to be able to say "Can we get to the fucking point already?" to them.
So yeah, while it may not be as bad as what the Globe article describes, I'd agree that it's probably likely that pro se (I learned a new phrase this morning!) defendants in collections cases get pushed around in New York as well. Along with the sort of malfeasance and breakdowns in administration the Globe describes, there's the fact that there's a zillion cases to process, the lawyers and court staff are there all the time while the defendants are completely new to the situation and uninformed, and many of them do, in fact, owe the money.
I do hope the series inspires some changes in MA and elsewhere (if Massachusetts performs so poorly, I have to think RI is as bad if not worse.) It's pretty appalling stuff.
My only experience with small claims court is being sued by a landlord for breaking a lease; both the landlord and I represented ourselves. (I won.) I was kind of surprised to hear that lawyers were ever used in small claims, it seems like the client would hit a point of diminishing returns really quickly.
3: As a Sprint PCS customer I just got a notice about a class action settlement related to overbilling. I've only skimmed the stuff, but it appears that two claims were made: (1.) Sprint didn't disclose that it rounded minutes up and (2.) Sprint charged excessive regulatory fees and pocketed the difference. (I think I saw an exampleof this in a recent bill, actually. I sent a nasty note, because it made my biill go over the limit I'd set for "automatic payment," which then made my payment late, thus triggering a late fee.)
I can't quite figure out how they came up with the different settlements. Since I wasn't customer until after June of 2003, I seem to be entitled to a $1.50 phone card. Members of other subclasses get up to $19.00 (over a year) or a one-time credit of $15. Here's the real kicker, though. In order to get the one-time credit deal, ou have to agree to extend your current contract with Sprint for an extra 2 years.
I guess that's worth the postage and teh cost of an envelope. Barely. From my perspective, it's more about making Sprint feel pain than it is about any benefit I'll receive.
I would like to check out the lawyers a bit. I don't plan on suing, but I might just opt out for the hell of it.
I know that the rules about who could be lead plainiffs in class actions changed a few years ago, but I don't remember if that only afflied to securities suits. (The general consensus seemed to be that big players liek Milberg Weiss would benefit, because they were quick to file which fact was likely to make the plaintiffs bar more trigger happy, not less---thus defeating PSLR's effect. Duh, as I write this I'm remembering that it was the Private Securities Litigation Reform Act. So, I have no idea what the rules are for other cases of complex litigation.) Apparently this case went forward in California (where I first signed on with Sprint, though that's not really related) and in Kansas.
That comment was misrendered because I tried to use characters that the site reads as code. It was supposed to say, "So how do they do it in the Bronx? </Steve Carell>"
Did your company appeal any of the Bronx judges' decisions?
Posted by Gaijin Biker | Link to this comment | 07-31-06 8:01 PM
"get railroaded" = "be held to the terms of an agreement"
Posted by Gaijin Biker | Link to this comment | 07-31-06 8:02 PM
"get railroaded" = "be held to the terms of an agreement"
Some of the nastier contracts I've ever signed have been for various quasi-monopolistic phone companies. Is the reasoning that I should forego having telephone service because tiny-print-subclause #156a says they can ride me sideways if they want? Or should I haggle on the terms of contract w/ them -- do you think they're customer service rep. would be open to that? It seems small claims court is the place where these sorts of shitty business practices need to get ironed out, as it's one of the few places where business and customer have a change of ending up on relatively equal footing.
Posted by Carl | Link to this comment | 07-31-06 8:27 PM
The Bronx case actually turned out all right, after a fair amount of stress. A Manhattan case, on the other hand, went the wrong way, and the Appellate Term (which is the special low-end appellate court they keep around for small claims court decisions and other miscellany) let it stick. The client wouldn't go for pushing it further.
Posted by LizardBreath | Link to this comment | 07-31-06 8:29 PM
As a matter of public policy, I do have to say that I don't think choice of venue clauses like the one I was enforcing should be valid for small claims -- if your claim isn't worth traveling out of state, you're SOL. But as a matter of NY law, they really are valid.
Posted by LizardBreath | Link to this comment | 07-31-06 8:31 PM
I've never felt so much like The Man in my life.
This from a woman who works for Big Tabacco!
Posted by rob helpy-chalk | Link to this comment | 07-31-06 8:31 PM
Yeah, but no one sees me working for Big Tobacco. I lurk in my office, writing things. On this stuff, I was standing up in court in front of about a hundred Bronxites, oppressing this guy.
Posted by LizardBreath | Link to this comment | 07-31-06 8:32 PM
My goal in life is to work for Big Tabasco.
Posted by teofilo | Link to this comment | 07-31-06 8:35 PM
Part of contract law deals with so-called "contracts of adhesion", i.e., big, one-sided contracts that no consumer ever reads or understands. The law in the US varies, but terms in such contracts that are "unconscionable" or "outside of the reasonable expectations" of the party that did not write the contract — i.e., a term so harsh that it would have stopped that party from signing the contract if he had known about and understood it — should not be enforced. But I don't think a simple choice of venue provision qualifies. LB?
Posted by Gaijin Biker | Link to this comment | 07-31-06 8:41 PM
Generally no, for small claims it differs state by state (it is pretty unreasonable to send someone a thousand miles to sue you for 500 bucks.) In NY, though, they're pretty unambiguously enforcable.
("Would have stopped that party from signing it" isn't really accurate -- it just has to be contrary to public policy.)
Posted by LizardBreath | Link to this comment | 07-31-06 8:44 PM
They let lawyers into small claims court in NY? Here in CA, you're specifically not allowed representation in small claims court; according to this page, if a corporation gets sued an employee, officer, or director has to show up to represent it. (So in-house counsel is allowed, but outside counsel isn't.)
Posted by Josh | Link to this comment | 07-31-06 9:57 PM
They let lawyers into small claims court in NY? Here in CA, you're specifically not allowed representation in small claims court; according to this page, if a corporation gets sued an employee, officer, or director has to show up to represent it. (So in-house counsel is allowed, but outside counsel isn't.)
All my to test my understanding, please. In CA, if you're a huge company that has the major benjamins to burn keeping a pet lawyer around, you're golden in small claims court. If you're Pa Kent from Smallville Farming Supplies and you get taken to small claims, you're fuxx0r3d 'cause you don't have in-house counsel (who'd make as much as every single other employee put together, including yourself, Ma Kent, and son Clark who helps out stocking the high shelves) and you're not allowed to hire somebody?
Posted by NBarnes | Link to this comment | 08- 1-06 3:45 AM
12: 'Allow me'. It's too damn late to be posting.
Posted by NBarnes | Link to this comment | 08- 1-06 3:46 AM
The link in the post is to part two of the series. Part one, which sets some context, is here, while part three (today's, which I haven't read) is here. It should be noted that the focus of the series is not on how debtors are being "held to the terms of an agreement"; the articles repeatedly note that many of the people who find themselves in the system do, in fact, owe money, and do pay it. What the series is about is how a neglected and poorly administered part of the judicial system is exploited by some aggressive collection agencies to their benefit. That includes improper seizures of property, illegally obtaining payments from assistance checks, and, yes, railroading debtors in court. For instance, the series details how agencies provide out-of-date addresses to be used to send court summons; when the defendant doesn't show up in court, because they never received the summons, a judgment is entered against them, making the range of possible actions against them much broader. At that point, miraculously, the collection agencies head straight to the debtor's proper address. Of course, none of the above touches on those cases in which the debt isn't actually owed but the defendant ends up getting screwed anyway.
The question for me in reading it was, do these problems reflect a nationwide situation, or does Massachusetts have a particular bad problem? The second part at one point does say, if I remember correctly, that MA ranks poorly in this area according to some study (too lazy to find the point, sorry.) So some of it is local. But I'm not sure if LizardBreath's Bronx experience necessarily means what she thinks. Rather than indicate that Bronx judges are more conscientious or more likely to stick up for the little guy, it may simply mean they're more apt to jump to the conclusion that defendents must somehow be in the wrong. Which would make them more like those operating in MA than different (though I'd point out that the small claims courts discussed in the articles aren't necessarily run by judges--in one instance, the Globe found collection agencies lawyers running a court session.) Even with that speculation aside, the simple fact that the plaintiffs in LB's example were plaintiffs, with (presumably) their own representation--something few in the Globe series had, or could afford--makes the situations quite different.
Posted by JL | Link to this comment | 08- 1-06 5:44 AM
My goal in life is to work for Big Tabasco
If you worked for Texas Pete, you'd have a much cooler logo on your business card.
Posted by reuben | Link to this comment | 08- 1-06 7:52 AM
Even with that speculation aside, the simple fact that the plaintiffs in LB's example were plaintiffs, with (presumably) their own representation--something few in the Globe series had, or could afford--makes the situations quite different.
No representation, which actually made my life more difficult. When a judge doesn't expect the person suing you to make any sense, because they aren't a lawyer, it's very difficult to prove that they're wrong. I still have unpleasant memories of standing there while a plaintiff waved around an old copy of the New York Post with an article about what awful people my clients were, and wouldn't explain what it had to do with anything he was suing us for.
But you're absolutely right that the plaintiff/defendant thing makes a huge difference. I'd readily believe that pro se defendants get pushed around in NY Small Claims, even though pro se plaintiffs get away with murder.
Posted by LizardBreath | Link to this comment | 08- 1-06 7:57 AM
15: Don't be half-assed about it.
Posted by apostropher | Link to this comment | 08- 1-06 8:14 AM
A friend buys this stuff by the case.
Posted by LizardBreath | Link to this comment | 08- 1-06 8:16 AM
Is this any good? It was briefly fashionable in Britain in 1997 and might be due for a comeback.
Posted by OneFatEnglishman | Link to this comment | 08- 1-06 8:21 AM
So besides seeing if there are enough potential plaintiffs similiarly situated to make a class action feasible, what options does the plaintiff (or plaintiff's lawyer) have when a choice of forum agreement is being enforced and the costs of travel are more than the potential judgment they could win? I guess you can still see if the defendant is willing to settle for some money.
Small claims mediation is awesome, I recommend anyone with the opportunity do it. People with the opportunity probably = no one here.
Posted by washerdreyer | Link to this comment | 08- 1-06 8:23 AM
what options does the plaintiff (or plaintiff's lawyer) have when a choice of forum agreement is being enforced and the costs of travel are more than the potential judgment they could win?
About what you'd think. See why choice of forum agreements are so popular?
Posted by LizardBreath | Link to this comment | 08- 1-06 8:33 AM
No representation, which actually made my life more difficult.
My mistake, and I understand what you mean. It must have been frustrating not to be able to say "Can we get to the fucking point already?" to them.
So yeah, while it may not be as bad as what the Globe article describes, I'd agree that it's probably likely that pro se (I learned a new phrase this morning!) defendants in collections cases get pushed around in New York as well. Along with the sort of malfeasance and breakdowns in administration the Globe describes, there's the fact that there's a zillion cases to process, the lawyers and court staff are there all the time while the defendants are completely new to the situation and uninformed, and many of them do, in fact, owe the money.
I do hope the series inspires some changes in MA and elsewhere (if Massachusetts performs so poorly, I have to think RI is as bad if not worse.) It's pretty appalling stuff.
Posted by JL | Link to this comment | 08- 1-06 8:36 AM
My only experience with small claims court is being sued by a landlord for breaking a lease; both the landlord and I represented ourselves. (I won.) I was kind of surprised to hear that lawyers were ever used in small claims, it seems like the client would hit a point of diminishing returns really quickly.
Posted by Clownæsthesiologist | Link to this comment | 08- 1-06 8:46 AM
3: As a Sprint PCS customer I just got a notice about a class action settlement related to overbilling. I've only skimmed the stuff, but it appears that two claims were made: (1.) Sprint didn't disclose that it rounded minutes up and (2.) Sprint charged excessive regulatory fees and pocketed the difference. (I think I saw an exampleof this in a recent bill, actually. I sent a nasty note, because it made my biill go over the limit I'd set for "automatic payment," which then made my payment late, thus triggering a late fee.)
I can't quite figure out how they came up with the different settlements. Since I wasn't customer until after June of 2003, I seem to be entitled to a $1.50 phone card. Members of other subclasses get up to $19.00 (over a year) or a one-time credit of $15. Here's the real kicker, though. In order to get the one-time credit deal, ou have to agree to extend your current contract with Sprint for an extra 2 years.
I guess that's worth the postage and teh cost of an envelope. Barely. From my perspective, it's more about making Sprint feel pain than it is about any benefit I'll receive.
I would like to check out the lawyers a bit. I don't plan on suing, but I might just opt out for the hell of it.
I know that the rules about who could be lead plainiffs in class actions changed a few years ago, but I don't remember if that only afflied to securities suits. (The general consensus seemed to be that big players liek Milberg Weiss would benefit, because they were quick to file which fact was likely to make the plaintiffs bar more trigger happy, not less---thus defeating PSLR's effect. Duh, as I write this I'm remembering that it was the Private Securities Litigation Reform Act. So, I have no idea what the rules are for other cases of complex litigation.) Apparently this case went forward in California (where I first signed on with Sprint, though that's not really related) and in Kansas.
Anybody know anything about this litigation?
Posted by Bostonaingirl | Link to this comment | 08- 1-06 9:09 AM
Mmm, Globe.
Posted by Mo MacArbie | Link to this comment | 08- 1-06 10:15 AM
So how do they do it in the Bronx?
Posted by washerdreyer | Link to this comment | 08- 1-06 10:19 AM
That comment was misrendered because I tried to use characters that the site reads as code. It was supposed to say, "So how do they do it in the Bronx? </Steve Carell>"
Posted by Anonymous | Link to this comment | 08- 1-06 10:21 AM