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Automobile Fraud: 10.9.3 Voir Dire

In jurisdictions where the attorneys conduct voir dire, the attorney should ask questions that require all the jurors to respond, and that encourage the jurors to respond often. The goal is to engage the jury and get an active exchange going.

Automobile Fraud: 10.9.4 Conduct of the Trial

Jurors can be surprisingly attentive during trial. They are attuned not only to nuances in the witnesses’ expression and demeanor but also to the appearance and manner of the parties and the parties’ attorneys and staff, both inside and outside the courtroom. The jury is likely to notice if one attorney appears disorganized or less confident, for example. In this vein it is a healthy practice to consistently display respect to the judge, the courtroom staff, the opposing attorney and staff, and to all witnesses and even the opposing party.

Automobile Fraud: 10.9.9 Arguing for Punitive Damages

Crafting arguments for punitive damages requires careful planning. Assuming that the facts have been marshalled that will justify punitive damages, the following are some arguments that can be effective.

What award will achieve the three purposes of punitive damages? Most jurisdictions recognize three main purposes behind punitive damages, all of which focus entirely on the defendant’s conduct:

Automobile Fraud: 10.9.10 Helping Fraud Victims Prepare to Testify

Fraud victims often are naive and have low self-esteem—that is why they were easy prey. In many cases they are helpful, cooperative people who like to please others and are easily manipulated, both in a sales situation and on cross-examination. The consumer lawyer’s job is to help such victims present their stories to a judge or jury, without collapsing on cross-examination.

Automobile Fraud: 10.9.5 Opening Statements

The opening statement is a chance to tell a good story, and consumer cases almost always make great stories. In the opening statement the consumer’s attorney should tell the jury what the evidence will show and what the witnesses will say, describing the story in the most persuasive terms. A lively, non-legalistic, somewhat dramatic presentation will be engaging for the jury. The opening statement should be imbued with the trial themes that the advocate has developed, and the advocate should return to those themes in closing argument.

Automobile Fraud: 10.9.7 Order of Witnesses

In presenting an automobile fraud case, remember that jurors remember best what they hear first and last. The consumer’s case should start and end with strong witnesses.

Automobile Fraud: 10.9.11 Defense Attempts to Limit Use of the Word “Lemon”

Defense attorneys occasionally file motions in limine asking the trial court to prohibit the use of the word lemon at trial, on the ground that the term is inflammatory and prejudicial. This specious argument is countered by the fact that the term lemon to describe a defective vehicle is found in most dictionaries549 and is used in many state statutes.550 Many state attorney general offices and consumer protection agencies distribute consumer education pamphlets using this term.

Automobile Fraud: 10.9.13 Closing Arguments

Closing argument is one of the most critical stages of trial. Entire books have been written on the subject of closing argument, so the following is only a selection of some of the fundamental points that should be covered in almost any closing argument:

Automobile Fraud: 10.10.1.1 Benefit of the Bargain Versus Out-of-Pocket Damages

Automobile fraud cases raise claims under tort law (primarily common law fraud claims) and contract law (primarily warranty claims), which have well-developed and quite similar measures of damages.566 In addition, most automobile fraud cases raise claims under various statutes, such as state deceptive practices (UDAP) statutes and federal and state odometer laws. These statutes generally do not set forth any particular measure of actual damages, so the courts borrow from contract or tort law.

Automobile Fraud: 10.10.1.2 Proving Diminished Value of Vehicle

If the court uses an out-of-pocket measure, the consumer will have to establish the amount the consumer paid for the car. If the court uses a benefit of the bargain measure, the consumer will also have to show how much the car would have been worth at the time of purchase if the car had been as represented.575 In either case, the consumer will also have the burden of showing how much the car was actually worth at purchase, based on complete knowledge about the car’s history.576

Automobile Fraud: 10.10.1.3 When to Utilize Used Car Valuation Guides

Another method of proving the true value of an automobile is by reference to a used car valuation guide.597 These are published as guides for dealers and list the average retail or wholesale value of vehicles, according to make, model, year and mileage, for the month in which the car was purchased.598 These guides, which are available in most public libraries, also quote values for jeeps and trucks.

Automobile Fraud: 10.10.2.1 In General

As an alternative to actual damages, the consumer can seek cancellation of the transaction and restitution of the purchase price under a variety of theories: revocation of acceptance under the Uniform Commercial Code;610 common law rescission based on misrepresentation;611 rescission or cancellation under the federal odometer statute;612 and, in a number of states, rescission under the UDAP statute.613

Automobile Fraud: 10.10.2.2 Relation to Recovery for Diminished Value

Even though the buyer cannot recover both restitution and diminished value of the vehicle,616 a few states have statutes making a contract void or unenforceable if it violates the UDAP statute.617 It may be possible for a consumer to recover damages from the dealer under fraud, UDAP, breach of warranty, and other theories, and then defend any suit for the debt on the ground that the contract is unenforceable.

Automobile Fraud: 10.10.3.1 General

Regardless of the measure of direct actual damages used, and regardless of whether restitution is sought, the plaintiff is also entitled to incidental and consequential damages.620 Types of incidental and consequential damages that are recoverable under the federal odometer statute and common law fraud claims are discussed in earlier sections.621 Other NCLC treatises examine such damages in UDAP and breach of warranty claims.622

Automobile Fraud: 10.10.3.2 Emotional Distress Damages

Emotional distress damages can be appealing in automobile fraud cases. Emotional distress damages are available in a number of states for at least some of the causes of action that consumers assert in automobile fraud cases.

Automobile Fraud: 10.10.4.1 In General

The method of computing direct damages in a lease transaction depends on the status of the lease. The calculation will be different depending on whether the consumer has exercised a purchase option, has turned the vehicle in at scheduled termination, has turned the vehicle in early, or plans to continue leasing the vehicle until the scheduled end of the lease term.

Automobile Fraud: 10.10.4.2 Damages When the Consumer Cancels the Lease

Lease cancellation—via rejection, revocation of acceptance, or common law rescission—should result in the return of all lease payments and down payments and no liability for early termination. While official comment 3 to UCC section 2A-517 indicates that, in some circumstances, the consumer should compensate the lessor for the use of the vehicle, the comment goes on to require consideration of the lessee’s circumstances and the defective nature of the vehicle in deciding whether compensation for use of the vehicle is owed.

Automobile Fraud: 10.10.4.3 Incidental and Consequential Damages

Incidental and consequential damages in a lease transaction are generally computed in the same way as in a sales transaction. There is no reason for incidental and consequential damages to be treated differently. For example, UCC Article 2A on Leases has a virtually identical provision on incidental and consequential damages as UCC Article 2 on Sales.658 One difference is that consequential financing costs in a loan are called interest, while the same costs in a lease are labeled on the federal disclosure form as rent.

Automobile Fraud: 10.10.5 Statutory Damages

When actual direct and consequential damages are small, or when they are impossible to prove, one approach is to seek statutory minimum damages.659 The federal odometer statute provides for $10,000660 minimum damages. In addition, a number of state odometer laws661 and state deceptive practices (UDAP) statutes662 provide for statutory minimum damages in varying amounts.