f/k/a archives . . . real opinions & real haiku

It’s been three years since I posted this quote — in a piece called “counsellor or mercenary?” — from Sol Linowitz‘s book The Betrayed Profession (Scribners, 1999; the passage is also found in the June 1999 issue of DCBA Brief):

“Elihu Root . . . put the matter more simply: ‘About half the practice of a decent lawyer,’ he once said, ‘consists in telling would-be clients that they are damned fools and should stop.’

“Today there are too few lawyers who see it as part of their function to tell clients (especially new clients) that they are damned fools and should stop: Any such statement would interfere with the marketing program. The public pays, because the rule of law is diminished.“

Later in the same chapter, titled “Living the Law,” Linowitz notes:

“The doctrine that professionalism means respect for the client’s ‘autonomy’ and commands doing whatever the client wants is, after all, most convenient. Nobody ever lost a client by doing exactly what the fellow wanted, but much lucrative legal work has been sacrificed by lawyers who regretfully told prospective clients that this was something they were not willing to do.”

Sol’s words and quotations came to mind today, when I saw the Law.com article “Law Firms Held Liable for Fees in ‘Tissue of Lies’ Patent Suit” (New York Law Journal, July 23, 2008). Anthony Lin’s piece begins:

“A federal judge has ordered a patent holder and his lawyers to pay attorney fees for bringing an infringement suit based on ‘nothing more than a tissue of lies’.

Irving Bauer had sued Romag Fasteners Inc., a manufacturer of magnetic snap closures for handbags, for infringing a 1996 patent on a new type of closure he claimed to have invented.

Last week, in Advanced Magnetic Closures Inc. v. Rome Fastener Sales Corp., 98 Civ. 7766, Judge Paul A. Crotty of the Southern District of New York invalidated Irving Bauer’s patent (for magnetic snap closures for handbags), finding that Bauer’s testimony about his inventorship “bore clear indicia of fabrication,” and adding that he was “convinced beyond a shadow of a doubt” that Bauer was no inventor.

Here’s the part of the article that most interested me:

“The judge held New York law firm Abelman, Frayne & Schwab, which initially represented Bauer in his suit against Romag, jointly and severally liable for Romag’s attorney fees after Feb. 11, 2006. That was the earliest date, the judge said, Abelman Frayne should have realized expert testimony the firm planned to use to support Bauer’s claim had been contradicted by testing.

‘By persisting with this claim to trial, Abelman counsel played a central role in so unreasonably and unnecessarily multiplying the proceedings so as to give rise to bad faith litigation,’ the judge said.

Bauer replaced the Abelman firm in August 2007 with David Jaroslawicz of Jaroslawicz & Jaros. The judge held Mr. Jaroslawicz jointly and severally liable for Romag’s costs after Oct. 5, 2007, finding he also should have been aware of the deficiencies of Bauer’s claims.”

Romag’s lawyer, Norman Zivin of Cooper & Dunham in New York, said he had previously requested around $1.2 million in attorney fees, though he said the judge would likely modify that amount.

Judge Crotty’s willingness to hold the lawyers responsible for their opponents’ fees is a welcome change from my last direct experience with frivolousness petitions in 1990 (see my war story for some of the facts). At that time, I specifically asked that opposing counsel be liable for fees after bringing a frivolous claim against my client (which was contrary to the existing police vehicle accident report and their own client’s guilty plea to vehicular manslaughter), and then continuing to maintain the claim for four years, despite expert reports and legal memoranda making it clear they had no valid basis for a claim. [Remember, “frivolous” does not simply mean without merit, it means “without a reasonable basis in fact or law.” See, e.g., Model Rule 3.1]

At the time, opposing counsel were outraged that I would ask that they be held responsible. The judge granted my motion for fees, saying that commencing the action was “irresponsible and frivolous,” and the failure to discontinue it compounded their bad faith. Nonetheless, he directed that the client corporation and individual pay our fees and costs, without even mentioning my request concerning their lawyers.

Root and Linowitz are clearly right: It is the lawyer’s job to say no when a client wants to press a frivolous claim, or when the lawyer is tempted sua sponte to make a baseless claim in order to curry favor with a client. The mere fact that saying no might lose you a client, or anger one, is not a good enough reason to go along. Lawyers are gatekeepers, with important responsibilities to the courts and the public. Seeing that Bauer’s lawyers might have to pay $1 million in fees should have a major deterrent effect on the rest of the Bar. It should.

The sole poem that I posted three years ago today gives me another idea for deterring cases like Bauer-Romaq:

in the misty day
no window can be seen…
a prison

 

……. by Kobayashi ISSA, translated by D.G. Lanoue

This one from one year ago today suggests another party we might want to intervene when confronted with such a “tissue of lies:”

thunder . . .
little leaguers chatter
silenced

……………………. by Randy Brooks – Baseball Haiku (2007)

These don’t seem to be related in law or fact, but are worth reprising from July 23, 2007:

mountain butterfly
from her boulder
to mine

moonrise . . .
cattle single file through
the narrow pasture gate

early morning cool
men in hard hats gather
on the last patch of grass

tongue out
the boy guides a new airplane
round and round

……………………. by Randy Brooks
“early morning cool” – the loose thread: rma 2001; Modern Haiku XXXII:1;
“moonrise . . .” – the loose thread: rma 2001; tundra 2
“mountain butterfly” – a glimpse of red: RMA 2000; Modern Haiku XXXI:2

Sometimes, it’s really hard to avoid cynicism over phony politicians, greedy special interest groups, and — let’s be frank — the spoiled, self-absorbed American public. Case in point: the so-called safety law that goes into effect in California tomorrow, July 1, 2008, relating to the use of cell phones while driving. See Cal. Vehicle Code, Division 11, Chapter 12, Article 1, Section 23123; Cal. DMV: Wireless Telephone Laws FAQs.

Summary of the new California Law: Unless you are using the phone to make an emergency call to the police, a doctor, or other emergency service provider, no hand-hand cell phone may be used by the driver of a vehicle after July 1, 2008, in California. Also, drivers under 18 (who apparently have much less political clout than their elders) are quite annoyed, as they may not use any cell phone while driving, except for emergencies.

Which leaves this old cynic asking:

What were these guys thinking (or trying to achieve or avoid), when they decided to permit the continued use of hands-free devices while driving? They had to know what study after study has demonstrated: hands-free car phoning is just as dangerous as the hand-held variety, because the problem is mainly one of distraction (and “inattention blindness“), and not the number of hands on the wheel. DWP — driving while phoning — leaves the driver as incapacitated as does DUI, with slower reaction times, longer stopping distances, and poorer judgment. Plus, allowing hands-free calls is very likely to increase the amount of DWP. See., e.g., “Industry Pushes Headsets In Cars, Agency Sees Danger Hands-Free Cellphones May Be No Safer Than Hand-Held” (The Wall Street Journal, July 19, 2004); “Hands-Free Cell Phone Use Takes a Hit” (Cars.com, June 9, 2005, orig. pub. in Detroit News); “Cell Phone Users Drive Like Old Folks” (Univ. of Utah Press Release, Feb. 1, 2005).

afterwords (July 1, 2008): Many thanks to Scott Greenfield at Simple Justice for pointing to this post and adding his customary incite-full insights. See “Driving with Cellphones — the Anti View” (July 1, 2008) In addition to rejecting slippery slope arguments, Scott declares: “I (like David) fail to see any necessity in using a cellphone while driving that justifies any increased risk to any other human being under any circumstances. Want to call? Pull over. It’s that simple.”

update (Jan. 14, 2009): See our post with the good news: “bravo: NSC wants to ban all phoning while driving.”

important update (July 21, 2009):  Many thanks to the New York Times for dedicating significant resources and space to the carphone safety problem and the failure of politicians and the public to heed the warnings. “Driven to Distraction: Drivers and Legislators Dismiss Cellphone risks” (July 20, 2009) ; “U.S. withheld data on risks of distracted driving” (July 21, 2009, page A1); plus, a never-released Draft NHTSA policy statement.

Also, see what NYT’s Ethicist Randy Cohen had to say about whether to comply when people ask you to call them while they are driving, in his column called “Distraction to the Driven” (Dec. 28, 2008), including:  “For a driver to deliberately increase his own peril is unwise; to endanger other people is unethical. You should not abet either.”  And, “That many states, including New York, bar drivers only from using hand-held phones is an act of breathtaking cynicism or dazzling ignorance. They might as well ban only gray cellphones but allow black ones.”

J. Craig Williams explained the situation pithily at his weblog earlier this month (May It Please the Court, “Driving While Talking: California’s Newest Crime,” June 11, 2008):

“No more driving with one hand on the wheel, one hand on the cell phone and your mind somewhere else.

“Well, you’ll still be able to have your mind somewhere else, just not with one hand on the cell phone.”

As I said in a Comment at Craig’s weblog: “It is disappointing to see that California has adopted the unprincipled compromise of allowing hands-free phoning (in order to make believe the politicians are serous about safety) . . . Indeed, allowing hands-free DWP merely makes it possible for irresponsible drivers to find something else to do with the extra hand.”

When you look at their law enforcement scheme, the seriousness of the California cell-phone driving laws is further in doubt: The fines are relatively small ($25 for the first offense and $50 for subsequent convictions); no points will be taken off your license; and the Highway Patrol has announced that they won’t be pulling people over for merely using hand-held cell phones, although the law permits them to do so. See “Drivers, retailers prepare for state law on cell phones” (Marin Independent-Journal, June 23, 2008). Experience in other States, such as New York — where scofflaws predominate — makes it clear that immediate, strict enforcement is essential, to have a significant chance of achieving a serious level of compliance. When it comes to DWP, a safety-conscious Governor needs to be a Terminator, not a feel-good Kindergarten Cop.

update (11 PM, June 30,2008): I just learned that Washington State also bans the use of hand-held cell phones while driving as of July 1st. Here’s a good quote from an AP article:

But traffic-safety advocates say the new laws will have little impact.

“Laws like Washington’s probably will have a big effect on making people feel good about passing a law but zero effect on highway safety,” said Russ Rader, a spokesman for the Virginia-based Insurance Institute for Highway Safety.

However, the new laws could have a big effect on businesses that sell headsets and related projects.

Admittedly, I’m a little obsessed by this topic (which teaches us so much about the state of the American psyche and its politics), and have been writing against DWP for a long time. It was, in fact, the topic of both my very first piece of paid internet punditry: a March 2000 “Advocate This!” column for the now-defunct Prairielaw.com, entitled “Shut Up and Drive“, and a major op/ed piece written for the Schenectady Sunday Gazette (“Car-phone ban is easy way out,” May 20, 2001), at the time when New York’s then-Governor George Pataki had proposed to ban hand-held car phones.

Because I am greatly disappointed that the trend-setting largest state in the Union is heading down the same sham-safety road as New York, New Jersey and D.C., and because neither of these gems is available currently online, I’m going to indulge my editor’s prerogative and quote major excerpts from each piece below the fold.

In the Prairielaw piece, I expressed the hope that politicians would reject the “easy compromise” of banning only hand-held phoning by drivers, which would let them avoid a larger confrontation with the telecommunications industry and with cell-phone-addicted voters. My argument then is still valid and been validated by many studies: Banning hand-held phones will do nothing to lessen the inherent distraction caused by a mobile telephone conversation. For example, I argued in 2000:

“Studies show no safety advantage using hands-free phones. Banning hand-held phones may in fact make the problem worse by encouraging more car phone calling. Judging from its many ads for hands-free devices, the car phone industry might actually favor a ban on hand-held devices, as it would force millions to buy new models to make billions of additional phone calls from their cars.”

Sorry to say, that prediction has come true in car and car-phone happy California. See, e.g., “Hands-free law boosts headset sales” (Marketplace Report, npr, June 23, 2008); “Top Brands Leverage Hands-Free Cell Phone Laws” (OnLineMediaDaily, June 23, 2008); “Merchants see hot sales for hands-free devices” (Marin Independent-Journal, June 23, 2008)

Actually, the problem is far worse than it seemed just a decade ago. Back then, cell-phoning was something that most drivers only did occasionally and quickly. Now, a large segment of the American driving public are chronic phoners, making long, serial phone calls. By 2005, Americans chalked up a billion minutes a day chatting while driving, and the numbers have surely climbed dramatically since then, as many drivers have grown to view DWP as natural and their birthright. The trend is further exacerbated by all of those auto manufacturers that are now intensely advertising hands-free devices pre-installed in their vehicles, and cell-phone service providers offering plans with virtually unlimited calling time.

And, note: “A recently completed study points to a separate potential danger: Even truly hands-free phones can be time-consuming to dial. It found that headset users with voice-activated dialing took an average of 37 seconds to dial their calls versus 20 seconds for those who picked up the phone and punched the buttons.” Also, “[T]he Swedish National Road Administration installed cameras in 40 cars and found that drivers wearing headsets drove faster than drivers holding their phones. Braking time slowed by as much 45% for cellphone users, with no improvement for those wearing headsets.” See Agency Sees Danger above.

It is the intensity of the distraction — you have to process interactive communication without visual clues — and the duration of the calls that make DWP far more dangerous than the strawman comparative activities often pointed to by car-phone advocates, such as eating a hamburger, switching the radio channel or CD track, or even putting on mascara. Of course, as I noted in 2000,

“The reality, however, is that politicians don’t need more data on car phoning, they need more backbone.”

In 2004, National Highway Traffic Safety Administration’s administrator Jeffrey Runge said “The thing that disturbs me is that we have states and local municipalities making rules that basically give hands-free phones a free pass as being safe. That’s not good policy.” In addition, my Gazette op/ed piece argued:

“Even more worrisome, passage of this legislation will almost certainly preclude additional car-phone bans for many years to come. I can already hear the lobbyists and their legislative mouthpieces decrying the unfairness of any additional ban, because of the good faith ‘investment’ of their customers and companies in the ‘legislatively-approved’ hands-free devices.

” . . . This is clearly an instance where having no law is better than having a bad law.”

updates (July 1, 2008): See/hear coverage from npr’s Morning Edition, “California Driving: Footloose and Hands-Free” (July 1, 2008), which does a surprisingly poor job of explaining what is different about DWP, and notes (as did the LA Times today) that “It’s unclear whether the law will be uniformly enforced across the state.” Meanwhile, the Washington Post‘s TechCrunch weblog suggests that “the real deterrent is public opinion” not the $20 fine, and concludes:

“There’s just one problem – some studies have shown that talking on hands-free devices are just as dangerous as talking on cell phones regularly.

“And of course one result of the new law will be that people who talk on their cell phones while driving now have to keep a lookout for the police, too, distracting them even more.”

Besides warning folks to “watch out for motorists fiddling with headsets,” an editorial headlined “Driving while phoning” [nice turn of phrase] in today’s Los Angeles Times makes a few points worth repeating:

“The cellphone restriction will prove worthy if accidents decline.

“It would be unfortunate if a majority of drivers responded by getting too comfortable with their new headsets and taking one more step toward turning their cars into mobile offices. As traffic worsens and people spend more time on the freeway, we look for ways to make the lost time productive. But driving while phoning or, more dangerously, while texting — oddly still perfectly legal for adult drivers — endangers lives and slows traffic even further.

“That leaves this safer solution . . . : Just turn off the phone until you turn off the engine. “

Want to know who’s to blame for California’s mostly-farcical hands-free cellphone safety law? The Mercury News says today that it’s Palo Alto’s Democratic State Senator Joe Simitian, a 55-year-old Boalt Hall law graduate, who has been pushing for it since 2001. At his legislative website, Simitian describes his professional background as “attorney, businessman and city planner.” (He has both a law degree and a masters in city planning from U. Cal. Berkeley.) Simitian clearly hopes to saves lives with his hands-free cell phone law, and I do not fault his motives. His site points to an article from MSNBC, “Hands-free phones are lifesavers, study says” (by Mike Stuckey, May 13, 2008) that describes a controversial study that predicts a savings of 300 lives a year in California from banning hand-held DWP. The study was by Jed Kolko, a fellow at the nonpartisan Public Policy Institute of California. The articles notes:

Most of those lives will be saved when the roads are wet or the weather is bad, said Kolko . . .

To a lesser effect, the laws reduce fatalities during rush hour, he said. “They don’t seem to have an effect on fatalities in good driving conditions.”

The f/k/a Gang was pleased to learn that Sen. Simitian has a new bill pending [SB 28] that would ban text messaging and e-mailing while driving. See “Legislation Outlaws Text Messaging While Driving” (KCBS.com, June 20, 2008). Of course, if he wants to get even more serious about saving lives and preventing accidents, we hope he will start working today on a total DWP ban in California.

Please click on the “more” link below to continue reading excerpts from my prior attempts to explain why a hand-held-only ban is “phony safety legislation,” that is not only dangerous, but actually worse than no ban at all.

in the middle
of the distraction –
an interruption

…………………. by dagosan

(more…)

• lawyers with “standard” contingency fees
• real estate agents charging the “standard commission”
• used car dealers offering the “standard warranty”

After shopping last week for a “pre-owned vehicle,” I’ve just added Used Car Dealers here in New York State to my list of sellers who use the word “standard” (1) to avoid negotiating with consumers and competing with other sellers, and (2) to imply that the State requires that they offer only the particular option that is being proffered to the consumer on a take-it-or-leave it basis. The word “standard” is employed to convince the consumer that the deal being offered is fair and written in stone.

It’s no secret that lawyers, real estate agents and used car salesmen are consistently rated among the least respected or least trusted professions. See, e.g., here, and here, there and there; and this cartoon. In my opinion, the standard-deal ploy alone goes a long way to justify the poor reputations.

This posting will focus on the “standard used car warranty” issue. We’ve discussed the first two culprits on the list in prior posts:

• lawyers offering only the “standard contingency fee” in personal injury cases, rather than basing their fee on the level of risk being assumed by the lawyer, as required under ethics standards — see, e.g., our four-part essay on contingency fees
• realtors requiring that you pay the local “standard commission” when selling a house and taking other steps to stifle innovation and competition — see our post “realtors and legislators are selling you out” (Oct. 21, 2005); and the American Antitrust Institute Symposium on Competition in the Residential Real Estate Brokerage Industry (2005). But, note a very recent, positive antitrust outcome: “Justice Dept. Announces Settlement NAR: Settlement Will Result in More Choices, Better Services and Lower Commission Rates For Consumers” (U.S. Department of Justice, Press Release, May 27, 2008). The settlement is discussed by the AAI, in “DOJ-NAR Real Estate Settlement a Milestone for Consumers, But…” (May 27, 2008); and by Consumer Law & Policy Blog (May 29, 2008); and Antitrust Review (May 27, 2008)

While p/i lawyers apply the word “standard” to what is actually the maximum contingency fee percentage permitted in their jurisdiction, used car dealers (in New York State, and probably other states with similar laws) use the term “standard” to describe what is really the minimum warranty periods and terms required by the State, and often to suggest that the State won’t let them offer longer warranties.

Disclaimer: Before I begin this discussion, I want to make clear that I did not start out last week to do an investigation of used car warranty practices. Quite simply, I needed to purchase an inexpensive, reliable, fuel-efficient vehicle — which meant that I’d be buying an older used car, probably with lots of mileage on the odometer. In addition, having no professional or personal experience with Lemon Laws ,or buying used cars from dealers in New York State, I only had a vague recollection that there was some kind of state-mandated warranty.

On the other hand, the very first time I saw a Buyers Guide in a used car window last week, I flashed back to a prior life of mine: Thirty years ago, I was an Assistant to the Director in the Federal Trade Commission’s Bureau of Consumer Protection, and one duty was to review the staff’s findings and recommendations in the Commission’s Used Car Rule investigation. In that role, I was (to my knowledge) the very first person to suggest that the FTC require all used car dealers to say in writing, and show it prominently in the window of each car by checking a box, whether the dealer was giving a warranty with the vehicle or selling it “As Is.” That might have gotten my old Consumer and Competition Advocate juices flowing. [At the time, I told my boss Albert Kramer the idea came to me while waiting to play tennis on a Saturday morning, and Al — who typically worked 7-day a week — liked the idea so much he said I should play tennis more often.]

Now that I have had a chance to look at the relevant NYS law and FTC regulation, I realize that many of the dozen dealerships I stopped at last week were in blatant violation of the rules for displaying the warranty information. I am not going to discuss that problem, but hope the NYS Attorney General’s office will start monitoring compliance more closely.

New York State has a Used Car Lemon Law Consumer Bill of Rights (General Business Law, section 198-b. Sale or Lease of Used Motor Vehicles). Under the Bill of Rights, a consumer must be given a written warranty, covering a list of specific systems and items, if he or she purchases or leases a used car sold for (or valued in the lease at) “more than one thousand five hundred dollars . . . from anyone selling or leasing three or more used cars a year.” In addition (emphasis added):

b. Written Warranty required; terms.

1. No dealer shall sell or lease a used motor vehicle to a consumer without giving the consumer a written warranty which shall at minimum apply for the following terms:

(a) If the used motor vehicle has thirty-six thousand miles or less, the warranty shall be at minimum ninety days or four thousand miles, whichever comes first.

(b) If the used motor vehicle has more than thirty-six thousand miles, but less than eighty thousand miles, the warranty shall be at minimum sixty days or three thousand miles, whichever comes first.

(c) If the used motor vehicle has eighty thousand miles or more but no more than one hundred thousand miles, the warranty shall be at a minimum thirty days or one thousand miles, whichever comes first.

See the New York State New Car Lemon Law Consumer Bill of Rights (PDF)

Despite the clear statutory language indicating that the law mandates minimum periods for the required warranty (depending on the vehicle’s mileage), and not a maximum or immutable warranty term, every salesman I asked about the length of the warranty immediately used the non-statutory phrase “standard warranty,” and most added a few garbled words that indicated that the State set the terms, and appeared to blame the state for the lack of a longer period.

At one new-car dealer, a young salesman was (or acted) totally befuddled at the notion that a warranty could be extended beyond the statutory period. The notion was so foreign to him, you would have thought I had asked him to throw in his first-born son, or the dealer’s cute daughter (who appears in their tv ads). He finally said he was certain the dealership — which obviously had its own large service department — would not consider making the warranty longer (which was only 30 days on the vehicle in question). Not even worth walking over to his supervisor to broach the subject.

Raising the “standard warranty” flag is meant to cut off the discussion of warranty periods. But, for many wary, mechanically-challenged consumers, the length of the warranty can be very important. It is an indication of the dealer’s faith in the condition of the vehicle, or willingness to back up words with deeds. As such, it seems to me that at least some dealers should be willing to compete — if not in ads, then to close or sweeten a particular deal — by offering more than the rather short statutory minimum terms. That is especially true if the dealer “self-insures” by performing any needed repairs itself. As with lawyers and real estate agents, however, the Standard Ploy appears to also signal to other sellers that no competition will break out over that aspect of the sale.

My life-long belief as a consumer advocate is that information and options fuel competition and help assure that consumers can achieve fair results in the marketplace. Not knowing that the required State warranty is a minimum requirement greatly hampers the ability of the consumer to bargain for longer coverage and to motive dealers to compete over warranty terms. Unfortunately, the New York State Attorney General — who enforces the law and is the prime source of educational materials on the subject — shoulders a large amount of the blame for the lack of information and the resulting dealer-based misinformation.

For example, the NYS Used Car Lemon Law Fact Sheet does not mention anywhere that the warranty periods are minimums. Indeed, it compounds the problem, fueling the Standard-Statutory-Ploy by showing the following table, which is labelled “Statutory Warranty Length:”

Statutory Warranty Length:

Miles of Operation Duration of Warranty

18,001-36,000 miles 90 days or 4,000 miles
36,001-79,999 miles 60 days or 3,000 miles
80,000-100,000 miles 30 days or 1,000 miles

In addition, the booklet New York’s Used Car Lemon Law: A Guide for Consumers (revised January 2008) does not mention the length of the warranty until page 4, and does not use the statute’s “at minimum” language, or say anything at that point about it being the shortest period permitted:

14. HOW LONG IS THE LEMON LAW WARRANTY PROTECTION?

Miles at time of Duration of
Purchase or Lease Warranty (the earlier of):
_______________ _______________
18,001 to 36,000 90 days or 4,000 miles
36,001 to 79,999 60 days or 3,000 miles
80,000 to 100,000 30 days or 1,000 miles

It is not until page 6 of the Consumers Guide that we see this question and answer:

18. CAN A DEALER GIVE ADDITIONAL WARRANTY PROTECTION?

Yes. A dealer may agree, as part of the sale or lease, to give you more warranty protection than the law requires. The lemon law warranty sets only minimum obligations for dealers.

Those two sentences are the only mention in this 36-page document of the dealer’s ability to “give” or agree to a longer warranty period. Nowhere is the consumer directly told of his or her right to ask or bargain for a longer period.

Indeed, although the actual Used Car Lemon Law Bill of Rights specifically says that the “warranty must be provided for at least” 30, 60 or 90 days, depending on the mileage, it appears that many dealers — in violation of the law’s requirement [subsection e] — do not give a copy of the Warranty, with the Bill of Rights, to the buyer “at or before the time the consumer signs the sales or lease contract for the used motor vehicle.” Instead, dealers — including the one that I bought my car from this week — wait until the car is being delivered to the buyer to provide those documents.

In its literature about its Used Car Buyers Guide — which must be posted in every used car sold by any dealer selling five or more vehicles a year — the Federal Trade Commission does a better job highlighting the ability of consumers to bargain for a longer warranty. For example, in its “Facts for Consumers: Buying a Used Car” [PDF] [en español], the Commission says:

“When you buy a used car from a dealer, get the original Buyers Guide that was posted in the vehicle, or a copy. The Guide must reflect any negotiated changes in warranty coverage.” And,

“Dealers who offer a written warranty must complete the warranty section of the Buyers Guide. Because terms and conditions vary, it may be useful to compare and negotiate coverage.”

Unlike New York, the FTC also provides “A Dealer’s Guide to the Used Car Rule.” The Dealers Guide includes this section, which clearly anticipates bargaining with the consumer over warranty terms:

Where Should Negotiated Warranty Changes Be Included?

If you and the consumer negotiate changes in the warranty, the Buyers Guide must reflect the changes. For example, if you offer to cover 50 percent of the cost of parts and labor for certain repairs, but agree to cover 100 percent of the cost of parts and labor after negotiating with the customer, you must cross out the “50 percent” disclosure and write in “100 percent.”

Having had no luck at all getting personal injury lawyers to drop the use of a standard contingency fee, I have no great hope that used car dealers and their sales personnel will drop the “standard warranty” language, stop acting as if the State prevents them from offering longer periods, and/or let consumers know that they are willing to bargain over the length of a warranty. I do hope, however, that this posting — plus the nudge I will be sending to New York Attorney General Andrew M. Cuomo, and to a few media outlets — will help inform the used car buyer of the option to bargain over warranty terms. If a new wave of competition breaks out, please let the f/k/a Gang know.

Meanwhile, I have no option but to offer our readers a few auto-related haiku and senryu:

checking the driver
as I pass a car
just like mine

……………………. by John Stevenson from Some of the Silence

cloud-free dawn . . .
the dent in the fender
holds its darkness

……. by George Swede in “dust of summers: RMA 2007”
orig. pub. Acorn 18

traffic jam
a plastic dog
keeps on nodding

……………. Yu Chang– Upstate Dim Sum ((2002/I)

mud-spattered pickup-
four dogs watch
the tavern door

…………. Billie Wilson – The Heron’s Nest (Feb. 2001)

first date –
her eyes linger
on the rusted fender

…………….. by dagosan