CONFESSIONS OF A RECOVERING TRIAL LAWYER
BY STEVE LEVINE, IGNITE CONSULTING PARTNERS
As I’ve mentioned in previous articles, I came to be a compliance lawyer after spending the first several years of my career defending car dealers and finance companies in a myriad of colorful lawsuits. After seeing the damage that litigation can do to a small business, I had an epiphany that I wanted to help prevent dealers from getting sued rather than defend them after the fact. What I haven’t shared with many of you previously, though, is that during this time I also handled a few lawsuits for consumers and sued a few dealers.
Since I’m not Catholic, that’s as close to “forgive me Father for I have sinned” as I’ll get. I’m not apologizing, I was young, hungry and had a chip on my shoulder. My philosophy was that if a dealer wasn’t smart enough to use my services they were fair game, plus I reasoned that if I didn’t take the cases someone else would. To this day, I’m grateful that I handled these cases because seeing the world from the other side of the aisle greatly improved my analytical abilities to defend similar cases.
I was thinking about a few of those cases recently when I was preparing a presentation on avoiding lawsuits for a group of dealers at a state convention. They provide some valuable insight into how cases develop and evolve, I’ll share a few stories.
In the first case, a gentleman had recently purchased a conversion van to provide transportation for his disabled daughter. Almost immediately, the van had significant mechanical problems that left him (and his daughter) without transportation. My client tried to work with the dealership but it refused his requests, relying on the “As-Is” language. Then he picketed the dealership, driving around the lot with a large yellow lemon affixed to the roof of the van. You’ve got to admire his creativity.
When he first called me, I almost didn’t take the case because I thought the mounting of a “giant lemon” on the roof was surely an indication of a difficult client. I knew all too well that the quality of the person in the plaintiff’s chair matters a great deal. I changed my mind, though, when he told me he had taken video footage of the dealership’s employees “flipping him off” and throwing things at him as he drove by. Next he told me about the “spot the lemon van and get $ 500 off your purchase” campaign that the dealership flashed on its display sign on the roadway. What sealed the deal, though, was when he sent me a recording of numerous threatening messages that the dealership left on his answering machine.
The end result was that I sued the dealership and finance company (just like a good plaintiff’s lawyer, I was looking for another pocket for recovery) for every claim I could think of for this conduct, plus I brought a class action for a disclosure error that I found when studying the contract because I was pretty sure if the dealer did it to this client it was a systematic error made repeatedly. Without going into details, the end result was a favorable financial settlement that enabled my client to acquire another, dependable means of transportation.
Even though this is an extreme case with several explosive facts, there are lessons that I think every dealer should remember when it comes to how plaintiff’s lawyers evaluate a case. First, I found the gentleman’s story to be very sympathetic. As someone with a disabled sister, I was empathetic to his experience and I thought that a judge and jury would be, too. Also, I thought that the combination of the dealership’s employees mocking this person (which he was smart enough to video, thank you VHS) and making threatening calls made punitive damages likely. Finally, I thought the danger of a credible class action would bring the case to a head rather quickly, which it did. It is important to remember is that class action lawsuits rarely start out that way, they usually start out involving a mechanical problem, as was the case here, that turns into a much more dangerous class action once a lawyer got involved.
The next case I’d like to mention also involved some pretty egregious facts, this time surrounding collections. A lady came in and told me that she had recently fallen behind on some payments on her car and that the BHPH dealer was calling her non-stop. When she shared the name of the company, my ears immediately perked up, because I’d tried to make this dealer a client and was dismissively and sternly told that they had everything in order and there was nothing I could possibly do for them.
Being young, hungry, with the aforementioned chip on my shoulder, I sure did remember that statement as she started telling me about the dozens of collection phone calls she’d receive every day from this dealer. When I asked what proof she had to back up her allegations, she told me she’d mail me proof. Imagine my surprise when I received a videotape (Betamax!) of her finger scrolling through her answering machine, minute by minute, hour by hour, with literally 40, 50 and even 60 calls to her house in a single day.
That case started out as a simple “wrongful debt collection” case based on the fact that so many calls a day was certainly harassment. By the time I looked through all of the paperwork, though, I threw in several more claims because there were incomplete forms, ones that had mathematical mistakes, and I thought that the dealer had sold her vastly over-inflated aftermarket products that provided illusory benefits in violation of state law. Foolishly, the dealer, stubborn as it was, refused a quick settlement and burned several thousands of dollars defending my discovery requests before agreeing to a settlement on the eve of depositions.
Anyone see a pattern here? In both cases, little problems turned into larger problems for the dealer once a lawyer started digging his nose into the details. In this case, I also think the dealer made a big mistake in not admitting it had a problem quickly and resolving the case. Between my legal fees and their own lawyers, they probably spent close to $ 10,000 or perhaps even $ 20,000 that didn’t need to be spent if they had just honestly evaluated the case early on. This is a mistake that I’ve seen lots of dealers make over the years, and a point that I always stress in training dealers on defensive litigation tactics.
I’d like to think that egregious examples like these would no longer happen because of the emphasis the industry puts on education, complaint management, and other defensive tools, but I’m not enough of an optimist to put money on it. That’s why when I first start working with a new dealer client, I emphasize the importance of putting key compliance blocks in place so that if it is attacked, I’ll be able to discourage the Plaintiff’s lawyer by demonstrating how this client is different than the stereotypical dealer. The key to doing this is to have demonstrable evidence to back up that claim, and that’s why complaint management, policies and procedures, training, risk assessments, and spot audits are so valuable! An ounce of prevention is truly worth a pound of cure, so take steps before trouble strikes.
Steve Levine is Chief Legal and Compliance Officer of Ignite Consulting Partners, which provides compliance guidance, training, and other services to independent dealers and finance companies across the country. He is a frequent writer and speaker on industry issues and can be followed on Twitter @LawyerLevine. For more information about Ignite visit its website at IgniteCP.com