Should I represent myself?
I get this question all the time, and for a good reason as most shops and technicians are used to representing themselves – and why not? The price certainly is right.
It makes sense – it’s how we’re programmed. As hard nosed do-it-yourselfers, there’s nothing we can’t handle. The embedded characteristic of a technician is one of pride, one of power, and the ability to handle anything. Complicated module programming? Sign me up! An R&R done by 6? Not a problem. We take pride in our work – its how we’re programmed.
This tends to exhibit itself in other arenas, if the wife wants a deck out back, we don’t call a contractor, we head to the local home depot. If the drain is backed up, we don’t call a plumber, we borrow a snake.
When it comes to legal representation, we feel the same way. If I can use a wobbler extension and swivel to crack the one bolt they wanted me to take off a frame bracket to get to while R&Ring the tranny, saving me 3 hours of labor time on the jobber sheet, I sure as hell can tell a judge why this customer failed to comprehend a blown head gasket means possible resulting damage. After all, her quote was, by definition, an estimate.
This means the customer’s quote is tentative. If the head is warped, it needs to be resurfaced, if it can’t be saved, it needs to be replaced. Is there a possibility it’s ok? Absolutely. But if she’s like every other customer, she drove that thing up a grade for two months in the summer before bringing it in, meaning the head is probably shot, there’s oil and coolant everywhere, probably clogging up things, eating hoses, killing sensors, etc.
I know you can do this, you can explain this to a judge. You can explain why you kept finding more problems, how one problem leads to another in a coherent manner – after all you explained this to her 3 times already – you’ve had the practice.
You would be right on one thing – you could definitely explain this aspect during the resulting litigation, after her radiator implodes because she wouldn’t pay for a new coolant temp sensor, claiming thousands of dollars of damage.
What’s lost is this is the written aspect of litigation and ability to respond to questions by the judge in oral argument and for this there’s an element of preparation involved.
I know many techs thought you simply show up and defend your case. Simply explain the issue to a judge and I should be fine. After all, you told her beforehand this could happen. You told her the diagnostic revealed oil in the coolant and coolant in the oil, suggesting a head gasket, which needed further investigation.
Do you think a judge cares?
In my appellate practice, two things were related to me by a former professor:
1. Judges don’t want to be reversed on appeal
2. Judges want to go home early.
A judge simply does not care about the cooling principles of a 1996 Dodge Neon – how Chrysler went with a cheap substitute instead of the multi-layered steel gaskets that last much longer, which is why it deteriorated after 60,000 miles, how she needed new bolts because they were torque to yield, and it killed the coolant temp sensor, etc. .
The judge doesn’t want to feel like an idiot. This is indubitably why it’s impossible for shops and technicians to find a competent attorney to represent them – they need to understand these characteristics of the industry to properly represent shops and technicians – not because they’ll end up in appellate argument discussing steel inserts in gaskets around combustion chambers and how they affect failure rates, but so he can translate the automotive language into understandable legalese for the court – their language of choice.
It’s a translation – nothing more, nothing less.
The judge wants to know about the contract and if there was a contract, where’s the evidence of said contract. Furthermore, what statute applies to this? Did you comply with the requirements?
He could care less about the technology behind it. He has no knowledge of the automotive repair industry. He didn’t go through college, then law school, then practice for 10 years before being appointed to the bench to have someone make him feel incompetent. What he does know about is contracts – he knows you’re a merchant so there’s probably some special rules that apply, but that’s all he has off the top of his head.
So, what about the contract?
Here’s how a description of the events would go. . .
Radiator failure and subsequent stranding was a result of customer’s negligence, acting as an unreasonable car owner, subjecting her vehicle to radiator failure for failing to replace the coolant temperature sensor after being advised the likely result of ignoring expert advice, grounded in authoritative materials provided for the courts consideration, would result in further damage to her vehicle.
The Technician in question does not have the ability to withhold an unsafe vehicle from a customer. If demanded, despite his advice, the technician must release the vehicle to the customer upon request. The legislature does not allow the technician to withhold a customers vehicle despite his knowledge that it is unsafe.
The Technician performed only the work authorized by the customer in accord with the automotive repair act, ASE standards and accepted methods, along with bureau of automotive repair guidelines. The technician performed his contractual obligations, performing only the work that was authorized.
Timeline of Events:
The initial estimate for a diagnostic created a binding contract between the parties. Technician agreed to perform a diagnostic service on the vehicle to determine the problem of overheating, white smoke, and driveability issues on one 1996 Dodge Neon. Customer related that she had been having these problems over several weeks.
Technician created a work order, i.e., the contract, between the parties where technician agreed to perform one hour of labor on said vehicle to determine the cause of the aforementioned issues.
He agreed to diagnose the vehicle and provide an estimate for the cost to fix any issues that were found. She agreed to pay one hour of labor for this service at his posted rate of $100 an hour. The work order was signed and keys were left with technician with instructions to call customer with prognosis.
Technician performed said work on vehicle, discovering coolant in the oil, oil in the coolant with a yogurt like substance upon inspection of the radiator fluid level.
ASE certified training manuals, the industry standard and authoritative figure on automotive repair technology, which we submit as evidence of following proper procedure, under the rules of evidence as authoritative as a learned treatise, a hearsay exception under the California Rules of Evidence, suggest that this is in fact a head gasket failure.
The manual also suggests ancillary damage could be a result of continued driving under these conditions, including head warping, sensor failures, radiator contamination, hose failure from excessive exposure to heat, thermostat failure, etc.
Customer was informed of the prognosis through telephone at work as requested, given a revised estimate to fix the head gasket problem. Customer was also notified that without proper teardown and inspection it would be impossible to determine the extent of damage to other parts of the car, but that further inspection would be needed to determine the cost for proper repair.
Customer was informed that further teardown would require 4 hours of labor at the same rate to determine the extent of the damage. This would also include rebuild time if customer wants her car put back together in lieu of repair. Parts would cost $200 as the head bolts are torque to yield, needing to be replaced upon repair, along with various gaskets and fluids to complete rebuild. The price also included a cooling system flush to get rid of contaminants.
Customer inquired into the potential costs of repair in addition to the head gasket. Customer was advised of the potential problems, including cracked heads as a result of continued overheating, sensor failures, radiator clogging, potentially needing more repair.
Customer described her attachment to said car, decided that further repair would be in her best interest.
Customer consented to said repair over the phone. Per legislative decree, starting with chapter 20, section 3, §9880 – §9999.8 of the Business and Professions code, authorization by a proper agent over the phone is sufficient to create an obligation in the agent for the described repair. In short, the telephone authorization was a de facto consent to the terms of the new contract for further diagnosis and possible repair of her vehicle.
Another contract was created between the technician and the car owner in the amount of 4 hours of labor at his $100 an hour rate and $200 in parts in addition to the initial $100 of diagnostic repair. A notation was made on the invoice to reflect the new contractual obligation.
Upon disassembly, technician, while using a straight edge as advised by the aforementioned training manuals and proper procedures and methods advised by ASE and accepted by regulating authorities as to methods of repair, found a warped aluminum head which was probably the result of driving with said problems for several weeks.
Technician called customer and related his findings. Customer was told head resurfacing was $100 and had to be sent to a local machine shop to perform this service. Customer agreed to the additional charges. Proper notation was made on the invoice as an acceptable method of modifying an automotive repair contract per section 9980-9998.8 of the business and professions code through legislative decree.
Technician had the head resurfaced by a local machine shop, replaced the gasket, reassembled the top end of the engine, added oil and coolant, started the vehicle, and took it for a test drive.
During the test drive, driveability problems were solved, along with the white smoke problem. Technician did notice the temperature readout gauge was not responding. With use of a multi-meter and scan tools, technician found the coolant temperature sensor readouts were not within range, suggesting sensor failure.
Technician tested said sensor after vehicle operation and after cool down. Sensor output wire voltage did not change. Other wires were within spec. Per ASE operation manuals an procedures it had been determined the sensor had failed.
Technician called customer with information, explaining that continued operation at high temperatures and contamination of coolant with oil and other contaminants caused sensor failure.
Technician recommended replacement of sensor. Customer was informed this would cost $50. Customer asked what the result would be if she did not replace the sensor. Technician told the customer this could lead to more driveability issues. The computer relies on sensor outputs to regulate fan operation, smog devices, and it is an important sensor for monitoring engine temperature.
Customer was not interested in replacing the sensor. Technician informed the customer that this was asking for trouble. Technician informed customer that there could be further problems as a result of the head gasket failure. The car might not be cooling itself properly. Infrared temperature readouts of the hoses were inconclusive. Failing to replace the sensor could lead to overheating, failed smog checks, warping of more parts, radiator failure, being stranded, etc.
Customer was informed of the risks associated with driving said vehicle without replacing the sensor. Customer felt the technician was trying to sell her parts she did not need. If the problem was the head gasket, who cares about the sensor? Technician informed customer that he would not be responsible for the resulting damage as this vehicle was not properly repaired.
The vehicle needed a proper cooling temperature to determine proper operation. Customer was informed vehicle was operable but unsafe to drive. The technician completed his contractual obligation as requested by the customer, fixing the white smoke and driveability problems. Technician informed customer that overheating may still occur due to her failure to replace sensor.
Customer came back two weeks later, alleging deficient repair by technician. Customer was left stranded on the side of the road in Los Banos with a blown radiator as a result of the failure to replace the coolant temperature sensor. This is confirmed through the technical readouts entered into evidence from ASE manuals and corresponding technical electrical diagrams from Dodge, a division of Chrysler Motor, to assist the court.
The fans rely on said sensor to turn on and cool the water flowing through the radiator as was described to the customer. Failure for the fans to turn on resulted in overheating, which created resulting pressure in the cooling system which caused radiator failure. This was explained to the customer before her vehicle was picked up. She felt this was unnecessary and did not properly fix her vehicle.
Radiator failure and subsequent stranding was a result of customer’s negligence, acting as an unreasonable car owner, subjecting her vehicle to radiator failure for failing to replace said sensor after being informed the likely result of ignoring expert advice, grounded in authoritative materials provided for the courts consideration, would be further damage to her vehicle.
The Technician in question does not have the ability to withhold an unsafe vehicle from a customer. If demanded upon, despite his advice, the technician must release the vehicle to the customer.
The Technician performed only the work authorized by the customer in accordance with the automotive repair act, ASE standards and accepted methods, along with bureau of automotive repair guidelines. The technician performed his contractual obligations, performing only the work that was authorized.
How this relates to whether you represent yourself:
Now then, did I explain the technical basis behind the problem? Yes, however, more importantly I discussed the contractual obligations created by each subsequent alteration of the original agreement, the legislative authority confirming the proper actions of said technician, the proper methods used by the technician in conformance with acceptable industry standards, and why the subsequent lack of action on the part of the customer caused the resulting damage – confirmed with technical information that might as well be written in Sanskrit for all the judge cares – but it’s there.
As a layperson, it’s extremely difficult to anticipate the legal arguments that you will need to make in front of a judge while addressing the issues in proper legal form.
A judge is not going to understand a lick of the technical information embedded in the aforementioned discussion – your expertise, nor will he understand your description of the problem represented in verbal form. The important information the judge wants is evidence – back up – statutes, codes, manuals, acceptable trade standards, contract formation guidelines for automotive repair dealers.
What he will understand is the basis for the creation of contract(s) in the discussion, how you followed procedure in creating a binding agreement, dutifully performed, addressed in a careful, yet calculated manner, by competent legal counsel.
If it was done right and proper, you’ll speak to two very important goals of most individuals on the bench.
1. The judge doesn’t get reversed on appeal.
2. The judge gets to go home early.