|Each year, millions of consumers experience problems with a product or service. There are several strategies for resolving those complaints. First contact the seller. If that does not work, contact a consumer complaint agency. If that does not bring satisfaction, consider other options, such as arbitration or filing a lawsuit. This article begins with the assumption that you do not yet need a lawyer to help you. If you are sure you need a lawyer open ""How to Hire the Right Lawyer" and ""Understanding the Legal Fee Agreement." There are many lawyers with many different levels of expertise and experience, who practice in widely different arenas. You will want someone with specific experience in prosecuting a specific case for you. These two related articles explain how an experienced lawyer goes about finding the "right lawyer" for a particular case and what you can and should expect in negotiating a contract for legal services.
CONTACT THE SELLER
Whether your problem is a defective hair dryer or a leak in your newly installed roof, the first step in resolving your problem is to contact the merchant who sold you the product or service. Most consumer complaints are settled at this level.
But first be prepared.
Always make a record and document what went wrong with a letter, by taking photos or by having your neighbor confirm that the ceiling under the new roof was leaking after the rain. Save boxes, brochures, and other written materials that were provided by the seller or contractor.
For a detailed list of considerations in cases of defective products, open the article on The Consumer Law Page entitled Preparing the Defective Product Case.
Gather together all relevant documents, such as receipts, cancelled checks, photographs, credit card bills, warranties, contracts, brochures, package inserts or bills of sale. Think about what you would accept as a reasonable resolution of your complaint. Do you want your money back, or would a store credit suffice? Would you accept a replacement item? Can the product be repaired? Think through your goal.
In approaching the seller, call first, indicate that you have a complaint, and ask to make an appointment with the appropriate person, typically the store manager or customer service representative. At that meeting, explain as briefly and accurately as possible both the nature of the problem and what you want the merchant to do. Be firm, but polite, avoiding displays of temper. (If it's not possible or practical to meet with the business, you can try calling or writing.)
If this proves unsuccessful, take your complaint to the person on the next rung up the chain of command. This may be the supervisor or manager, the store owner if the store is locally owned, the corporate consumer complaint department, or even the president or CEO of the company. You may also decide at this point to pursue your complaint through the manufacturer, rather than through the merchant, particularly if your problem is covered by a warranty.
At this stage, you should put your complaint in writing. Your one- to two-page letter should be polite, well organized, and either typed or written legibly in ink. It should include:
You should include copies, not originals, of all documents related to your complaint, and you should keep a copy of your letter for your files. Also, be sure to keep copies of any correspondence you receive from the company, and keep dated notes on any telephone conversations you may have regarding the complaint. This documentation could determine your success or failure if you need to take your complaint further.
CONTACT A COMPLAINT AGENCY
In most cases, contacting the seller or manufacturer will produce a satisfactory resolution to your complaint. When the merchant and manufacturer are not cooperative, however, you can seek assistance from a government or non-profit complaint agency. Your phone director or local library often lists these organizations. It is best to contact them individually, instead of copying one letter to many agencies.
State, County, and City Consumer Protection Offices
In most states, there are agencies that can assist in resolving consumer complaints. These agencies may be in independent state, county or city offices, the governor's office, the county District Attorney's or City Attorney's office, or the Attorney General's office. It is important to notify these governmental consumer protection offices of any complaints. Consumer complaints that report abusive practices or indicate an on-going pattern of fraud are often the basis of investigations and changes in the law.
Contact the agency first by phone, since most will want to mail you a complaint form to use in filing your complaint. You will also need to provide copies, not originals, of relevant documents, and you will need to describe what you have already done to resolve your complaint. If your complaint involves a business in another state, you may be referred to a consumer office in that state.
Better Business Bureaus
Better Business Bureaus (BBBs) are non-profit organizations, sponsored by local businesses, that promote good relations between buyers and sellers. While BBBs have no authority to force even their members to resolve complaints, most will at least contact the merchant, and some offer more formal binding arbitration.
Most BBBs prefer that you call first, so that they can determine whether your complaint is within their jurisdiction and, if so, mail you a complaint form. Once it has received your completed form, the BBB generally will contact the company for its response and try to negotiate a solution. If this effort does not resolve your problem, some BBBs will also offer arbitration, in which both you and the merchant agree to let a neutral third party decide on a fair resolution.
For more information about BBS, open the Resources Section of The Consumer Law Page.
Consumer Action Hotlines
In some communities a television news program, radio talk show host, or newspaper columnist will offer a hotline to help resolve consumer complaints. These services use the leverage of media exposure to encourage stubborn businesses to respond.
Other Non-Profit Organizations
A variety of other non-profit organizations try to resolve consumer problems. They include legal clinics associated with law schools and grassroots community organizations.
Most federal agencies do not handle individual consumer complaints. But it is important for you to bring complaints to their attention so that they can take any appropriate legal or regulatory actions to prevent future problems. Do not hesitate to report defective products to the Consumer Product Safety Commission. Report defective automobiles to the Department of Transportation's National Highway Traffic Safety Administration. For more information about these agencies open the Resources Section of The Consumer Law Page.
Industry Trade Associations
Some industry trade associations offer assistance in resolving complaints pertaining to their members. The assistance offered usually resembles the information mediation provided by BBBs. Some of the better established services of this type include the Major Appliance Consumer Action Panel (1-800-621-0477) and the Direct Marketing Association Mail Order Action Line (written complaints only to Mail Order Action Line, 6 East 43rd Street, New York, NY 10017).
Certain products and services are under the separate jurisdiction of specific state agencies.
Every state has a banking division which regulates state banks. Many will help consumers resolve complaints involving state-chartered banks.
Consumers with complaints involving insurance companies or agents can get assistance from the state insurance division.
Every state has a securities division to regulate securities investments. If you have a complaint about a broker, investment adviser, financial planner, or a specific investment product, call your securities division for assistance.
Electric, Gas, or Telephone Company
In each state, the Public Utility Commission or Public Service Commission assists consumers with complaints involving public utilities. In some states, these utility commissions also regulate and handle consumer complaints against in-state moving, trucking, charter buses, and airport shuttle vehicles. In addition, some states have Consumer Utility Boards that will help consumers resolve their utility complaints.
Many states license certain trades, particularly building trades, such as general contractors, carpenters, plumbers, and electricians. In some states, the departments which license these trades will assist consumers to resolve their complaints about licenses.
Every state but South Dakota and Arkansas has a "lemon law" establishing procedures to resolve complaints involving chronic car problems. These state laws specify the number of days and repair attempts needed to qualify. Contact your state consumer protection agency for information on the state's lemon law. Some states also have lemon laws covering used cars.
Postal inspectors assist consumers in resolving mail order problems as well as with fraud cases in which the mails are used in any way to advance the fraud. Contact the postal inspector (not the Post Master), whom you will find listed under the Postal Service in the U.S. Government listings or in the white pages of the phone book.
FILE A LAWSUIT
If all else fails, consider pursuing your complaint in court, either through small claims court or, if the amount of money involved is large, through a civil lawsuit.
Small Claims Court
Located in nearly every county and city, small claims courts provide a relatively fast, efficient, and inexpensive way to resolve consumer problems. Most accept claims up to several thousand dollars and allow consumers to present their own case without the assistance of an attorney. In fact, in some states lawyers are not permitted in small claims court. Many of these courts and some consumer agencies make available written material about the small claims process and how to prepare for it.
When your case is called, you will have a chance to explain your problem to a judge in the presence of the subjects of your complaint. After hearing both sides of the case, and reviewing any written evidence provided, the judge will make a decision. Be aware that collecting small claims court awards may be difficult and include additional costs. Consult the court or your consumer agency about how best to ensure payment.
Finding the "Right" Lawyer for a Civil Suit
If your claim exceeds the small claims court limit, consider pursuing it through a civil suit. For such a suit, you will need a lawyer.
To find a lawyer, you can ask friends or any professionals you know for recommendations. If you have a low income, you may be able to get help from the legal aid or legal services office. Also, check to see if your employment benefits include a group legal services plan.
Finding the "right" lawyer for your case will be a significant challenge and it will take time. Your goal is to find someone who has experience representing consumers in cases involving commercial fraud or defective products. A lawyer experienced in consumer litigation will have immediate answers to your questions, will not postpone providing advice, will not promise to "think about it," and will not have to conduct any research before making recommendations. In short, the lawyer you want will be an expert.
First, plan to devote 16 to 24 hours finding the right lawyer. This is a difficult task. Stay with it. Avoid most county bar referral programs which may or may not be manned by the "right" person. Despite advertising, most lawyers live behind letterheads that tell consumers absolutely nothing about what they do and their areas of speciality.
The World Wide Web is becoming an excellent sources of information for consumers who need lawyers with special skills. Check the law lists on the World Wide Web. These lists are growing daily. You need URL capability through Mosaic or Netscape both of which are freely available. One of the best is The Seamless Web. Also see, Yahoo, Einet, P-Law and West's Law Directory.
Check out the home page of The Alexander Law Firm.
Look for a lawyer with the same dedication, commitment, experience and record of success in the types of case that you have that is shown there. Dedicated lawyers who are fiercely proud of their record of success can be found across the country, but you have to search them out. Take the time to find the "right" lawyer and you will not regret the effort that it takes.
In addition, America Online's Court TV provides a database of lawyers and if your local newspaper is online, a search of that database can provide information about lawyers with special background and experience. For a detalied description of how to conduct your search read How to Find the "Right" Lawyer: Consumer Rights in the Legal Marketplace here on The Consumer Law Page.
Be creative. Start with a trip to the local county law library. Find out if the state bar organization in your state has a section or group of attorneys who deal with your issue. Local and state bar association have groups or sections of lawyers interested in special areas of the law. Once you identify a section that meets your needs, call the section chair directly and ask for referrals. Most states require lawyers to attend Continuing Legal Education courses. Lawyers in charge of these programs are excellent sources of referrals. Open Martindale-Hubbell at the county law library to find specialists. This is a national rating guide and many lawyers provide detailed information about their practices, articles, and teaching experience.
Local bar presidents and the presiding judges of your general trial court are also good sources to identify a group of practitioners with a speciality in your problem.
Skilled trial lawyers are listed by the American Trial Lawyers Association in its membership list. The section on sustaining members contains prominent trial lawyers who can also be a good source for referrals to specialists. Skilled lawyers know the "right" lawyers in their community with special skills. Call your State or local Trial Lawyers organization or Consumer Attorneys Association for referrals.
The National Board of Trial Advocates in Boston [617.720.2032] can refer you to a certified civil trial advocate in your location and the National Association of Consumer Advocates [617.723.1239] is another good referral source.
Once you start developing a list, call and ask for an appointment concerning a "new matter." Expect to be screen by a member of the attorneys staff. This is common. It is extremely helpful to prepare a one page typed summary of the relevant information concerning your case. Offer to fax it to the paralegal assistant screening your call and at the same time ask to be mailed a copy of the law firm's brochure describing its services and the lawyer's professional resume.
Important Information to Provide Prospective Lawyers
Provide prospective lawyers with copies of your complaint letters. If you have not done that type up a brief report of the events involving your case, make it one or two pages long, so that when you meet with the lawyer there is something for him/her to review. Your one page summary should provide the following information.
Many times lawyers are contacted by someone other than the person in need of help, such as a parent on behalf of a child, or someone on behalf of their spouse. Provide the following information on behalf of person who needs assistance.
Describe in 25 words or less why you need a lawyer. The following are examples from actual cases.
Consumer fraud examples ABC Company is defrauding consumers who buy its lightbulbs; my contact lens company sells three different lenses which can be worn for different periods at different prices, but they are all the same product.
Small business examples: I have a franchise with XYZ Corporation and other franchisees are getting preferential treatment; RST Company took a down payment for a franchise and never returned my money.
Toxic chemical examples: I worked with strong chemicals for years and was just diagnosed with leukemia; the EPA just told us that our home is built on a toxic waste disposal site.
Defective product examples: My minivan has been recalled three times and still overheats;
The important point is to provide a brief overview of the type of problem you need resolved.
State the date you were injured or when you first learned that you had been damaged?
How did you learn you were injured? Many times actual knowledge of injury does not occur until well after a wrongful act occurs.
Describe the damage or injury that you have suffered.
Where did it happen?
Who caused the harm?
Full address of wrongdoer
What additional information do you believe the lawyer should have to help you?
What is your goal? Explain here what you hope to achieve by working with a lawyer on this issue.
State if you are interested in serving as a representative in a class action.
Contingency Fee Contracts
Search for a lawyer who will take your case on a "contingent fee" basis, where the lawyer is paid a percentage of your recovery if you win and no fee if you lose. Also, consumer laws in some states allow for recovery of "reasonable attorney's fees."
If you have a claim that makes economic sense and one that will provide a lump sum recovery, hire a lawyer who will work on a contingency and who will advance costs without recourse. In many states a lawyer can only promise to advance the costs of prosecuting a suit. In California, an attorney can lawfully agree that in the event there is no recovery,the client owes nothing for fees or costs, but that is not true under the Rules of Professional Conduct in most states.
Keep in mind that lawyers, like other professionals, have office overhead that must be paid for staff salaries and all the other usual costs of running a business. The percentages charged by most lawyers are not set by law and are subject to negotiation. There has been much public discussion about attorneys fees instigated by the insurance industry and major manufacturers who are working to deny consumers the right to hire lawyers under a contingency fee or percentage contract. That fact alone should confirm what a valuable right Americans have under this type of fee arrangement. Nearly no one else in the U.S. agrees to provide services and pay for the cost of a project only if they are successful and the client controls whether or not to give approval to the final result. This is a distinguishing aspect of American law and its support of consumers and individuals.
Historically, under a net fee contract case costs would be repaid to the lawyer off the top, and then the net recovery would be be shared 33/66 or 40/60. Because of recent court decisions, many lawyers now are offering a fixed percentage to cover both fees and costs, usually 33% to settle before filing suit and 40% after filing. These agreements provide the client with a guaranteed percentage in those cases where the expense of preparing a case are high and encourage lawyers to spend efficiently. Contingency contracts where the attorney requires a 45% fee off the top and requires the client to reimburse costs out of the client's portion of the recovery are an indication that the case may have more negatives than positives.
Whatever you do, always have a written fee agreement and do not sign it unless it is in clear English that you can understand.
This is all the more important when you are hiring a lawyer on an hourly or fixed fee basis. Reputable lawyers prepare an agreement that spells out what he/she is to do and what your obligations are as well. Do not sign it unless you understand it and it contains terms that you consider fair.
In evaluating lawyers, only hire a lawyer who agrees to "work" with you. Do not expect the lawyer to initiate contacts with you. Playing telephone tag is for amateurs. Real lawyers are extremely busy and they do not sit by the telephone to take calls. The type of lawyer you will want will be spending time in court, in depositions, meetings with other lawyers and clients, traveling a good deal, and responding to motions set by my opponents. To keep open communication with your lawyer, set meetings in the office or by telephone with the attorney's assistant. Understand that most active lawyers do not control their calendar and your conference may be continued from time to time. Be flexible and ready to reschedule. The key is to regularly meet, make sure your case has not fallen through the cracks, that you are confident all the work is getting done, and that you understand what is developing.
Lastly, if you cannot locate an attorney to take your case on a contingency basis, you might try paying an attorney for one hour for a consultation to discuss the potential merits of your case. If your case really has no merit (and many of do not), you are better off not dwelling on the subject because the focus of your frustration will shift from the wrongdoer to the attorney who told you you did not have a case.
Free Consultations are Available
Many lawyers offer initial consultations, typically for half an hour, either for free or for a small fee. Such a consultation does not commit you to using the lawyer or taking your case to court. During that consultation, you should ask the lawyer about his or her experience bringing similar cases. You should present the facts of your case, and ask for an estimate of your chances of success. You will also need to find out how the lawyer charges and what the expected cost for your case would be.
Be sure to ask whether your case qualifies as a class action, a powerful legal tool which can be used by one person to remedy wrongs committed against many consumers. Class actions provide individuals having claims that are inefficient to prosecute separately to be joined together providing there are common issues shared with others and the person filing the action as a class representative is willing to represent the interests of all persons similarly situated.
If you agree to serve as a class representative you will be representing the interests of all members of your class in litigation to recover money damages for the class. In short, you will be representing the rights of everyone who has been similarly injured because you have claims which are typical of those of the class, and thus involve common issues of law or fact. You are required by law to consider the interests of the class just as you would consider your own interests and you will participate actively in the lawsuit, such as by testifying at deposition and trial, and answering written interrogatories, and by keeping generally aware of the status and progress of the lawsuit.
A class action gives you effective power to force a defendant to deal with everyone fairly. Any resolution of the class claims is subject to court approval and must be designed in the best interests of the class as a whole. Your main obligation is to provide your lawyers and the court with all relevant facts of which you are aware.
As a class representative you volunteer to represent many other people with similar claims and damages, because you believe that it is important that everyone benefits from this lawsuit equally, that a class lawsuit will save time, money, and effort, and thus will benefit all parties, and the court, and that the class action is an important tool to assure compliance with the law and honest practices.
FOR MORE INFORMATION
The Consumer's Resource Handbook includes a directory of government, non-profit, and corporate consumer complaint assistance contacts. Single copies of the Handbook can be ordered, free of charge, by writing to Handbook, Consumer Information Center, Pueblo, Colorado 81009. See the Resources Section of The Consumer Law Page to directly access this service.
The Lemon Book: Auto Rights For New And Used Cars, by Ralph Nader and Clarence Ditlow, provides a step-by-step guide to pursuing automobile complaints. It can be ordered for $15.95 from the Center for Auto Safety, 2001 S Street, N.W., Washington, D.C. 20009.
Portions of the information in this brochure were provided by the Consumer Federation of America (CFA) and the National Association of Consumer Agency Administrators (NACAA). CFA is a federation of 240 non-profit organizations and represents the consumer interest through advocacy and education. NACAA's 150 members in city, county, state and federal consumer protection offices enforce consumer laws and promote awareness of consumers' rights. Both are excellent sources of advice and information. CFA can be reached at 202.387.6121 and NACCA at 202.347.7395. Any errors are those of the author.
For more information on the rights of consumers, consult the Resource Section of The Consumer Law Page.
About the Editor
San Jose attorney Richard Alexander, a National Honor Scholar at The Law School, University of Chicago, was first certified as a civil trial advocate by the National Board of Trial Advocacy in 1980, is specially recognized as a Trial Lawyer by Consumer Attorneys of California, is a former member of the Board of Governors of The State Bar of California, currently serves as Vice President of Consumer Attorneys of California and is a founding member of the National Association of Consumer Advocates. The Alexander Law Firm specializes in negligence, toxic chemical, defective product, mass accident, environmental and fraud cases for individuals and small businesses. The firm holds Martindale-Hubbell's highest rating for legal ability and adherence to ethical values and is recognized in the List of Preeminent Law Firms in the United States.
Related Articles at This Site:
Press here to visit The Consumer Law Page