Susan Bates

Attorney

By Staff Writer

Categories: Law

Susan Bates is an Attorney, a litigator who fights for consumer rights. During our interview, she shared how important it is to "agree with thine adversary"; to be able to put yourself in your opponent's shoes to find mutually beneficial resolutions; to refuse to react to aggressive personal attacks; to stay focused; to maintain your credibility; and more.

What's your specialty in law?
I'm a litigator, and the litigation primarily involves consumer warranties. As a sole practitioner representing consumers against multi-national corporations, I frequently am dealing with large law firms. I have clientele from all walks of life, businesses, and economic backgrounds. Generally, my clients have purchased a defective product -- usually a motor vehicle. They have tried unsuccessfully to work with the dealer and the manufacturer to conform the vehicle to its warranties. The law requires a reasonable number of attempts to have it repaired and a substantial defect.

How did you get into working with "lemon laws"?
One of my law school buddies had some auto cases and suggested that I meet with other attorneys when this area of law was just getting started. This was an opportunity to get dangerous vehicles off the road before they were involved in accidents. I take these cases on contingency, so individuals are not putting out a lot of money. If we go to trial, the legal expenses may be two or more times the cost of the product, sometimes ten times as much, depending upon what the defense does. The law provides for the litigation expenses, including attorney's fees, to be paid by the defendants so that the consumers can be made whole.

Have you found any Bible passages particularly helpful as a litigator fighting for consumer's rights?
There's a Bible verse I've used over and over: "Agree with thine adversary quickly, whiles thou art in the way with him" (Matt 5:25).1 When you're agreeing with the adversary, you're agreeing to disagree. You have to know your adversary, know the facts, and learn what you're dealing with. When I take a case, I'm not going in to attack the defendants or anyone. I see the situation more as a misunderstanding or a mistake. It's much easier to find compromises and resolve things from this basis rather than from an adversarial standpoint. I keep seeing more and more applications for this Bible passage -- both in and out of law. This is not a Pollyanna approach. For me, it is the most aggressive way to serve the interests of my clients.

How else have you applied "agree with [your] adversary"?
I use the idea during mediation and throughout the entire process. By law, after the complaint is filed and before trial, we have to go to judicial mediation or arbitration. Often when you get to mediation, the mediators will say it's a lose-lose situation. But that's not how I feel. I feel it can be a win-win situation. Often the clients get what they want -- a repurchase. And if the manufacturers play it right, they can keep a customer. In many cases, they settle before we even file a complaint; they settle at the demand letter, which I write setting forth the facts, the law, and what my clients want.

When my clients come to me, they are often very angry or hurt. Poet and Christian philanthropist Hannah More (1745-1833) said, "If I wished to punish my enemy, I should make him hate somebody." If my clients hate the manufacturers or get angry at the dealers, they won't do well at depositions. And if we go to trial, it's really important that my clients don't react and that they stay focused, even when the other side does something bad.

So when I talk to my clients, I often take my fists and hit them together to show them that this combative attitude will not go any place. Then I take my two fists and put them to one side so they miss each other. When you don't react to what the other says or does and can look at the situation from their perspective, it's much easier to come to a resolution or to aggressively represent your client at trial. We also have to look at what the lemon law provides: my clients are not going to get a pound of flesh or a million dollars -- only what their loss is worth from a monetary standpoint. In fact, I'm not going to represent someone who wants a million dollars or something extraordinary because the law will not give it to them.

You mentioned focus. How important is keeping your focus?
To win a case, you have to keep your focus. If you're angry or hateful, then you've lost your focus. The defense counsel will make personal attacks against my client and/or me to cause our attention to be diverted from our facts, our case. If they can convince the court that they're correct, then we get bad rulings from the court and may lose the case. So I don't have the luxury to engage in personal animosity or attacks. I have to stay focused on the facts and on the case. To do that, I have to know the defense, the opponent.

How do you get to know your opponent?
When I attended the Trial Lawyers College in Montana, Gerry Spence, consumer advocate, stressed putting yourself in the position of witnesses and clients as well as knowing yourself. If I were in the opponent's position, what would I think or do?

For instance: somebody high up with the manufacturer has decided the company will make more money if they don't have to do warranty work on air conditioning. So, they tell the dealers to spray an antifungal product on the A/C unit. The dealers agree. The person who brings the car in thinks the dealer is repairing the car under warranty. But this doesn't fix the problem. The technicians are frustrated because they can't do a diagnostic on the car because the manufacturer doesn't pay for diagnostics; the manufacturer just pays to remove and replace. Then the consumers and their families get upset because they keep smelling this odor. And, worse yet, repair orders were not written showing the repairs, so the consumer has no evidence of the many repairs to prove that the manufacturer had a "reasonable number of attempts" to conform the car to its warranty and that the consumer had consistently complained about the odor. Now everyone's upset, but no one knows that they are all affected by an edict from someone way up high at the corporate level.

I put myself in the technician's shoes and understand his frustrations. I can appreciate the position of the dealer who wants to maintain good customer relations and good manufacturer relations. I empathize with the consumer's frustrations, which can cause arguments within the family. By putting myself in each person's position, I can see where he or she is coming from; I can "agree" with them, rather than argue with them. As a result, we can usually come to a resolution, or the entire story comes out at trial where the jury can see the problems caused by the manufacturer's policy.

I also think you have to understand your own clients. I often will have my clients act things out so I can learn more about the situation. Sometimes we get too hung up on words, which don't always reveal everything. You have to be able to listen and feel what people are really communicating, not to what you think they're saying.

What are some of the challenges you face as a litigator?
The big challenges are the misrepresentations or personal attacks aiming at my credibility or my clients' credibility. So, I try not to react to those attacks. If they say something that has validity to it, I try to address the issue. But sometimes they say something I know nothing about. During one trial, the opposing counsel, who had a lot of money, had done a lot of research on my client. He informed the judge in chambers that my client had a porn website. I knew nothing about this. Even though it had no relationship to the trial and wasn't true, we needed to address it. My client had a business website that he had discarded. Apparently there are organizations that will pick up these websites and put porn on them. When the original owner finds this out, he then has to pay to have the porn taken off.

This is just one example of the various attacks defense counsel launch. A lot of attorneys will not do litigation because of the severe attacks. It's hard to take these attacks. They do affect how you put on a trial. Even judges will sometimes jump to conclusions. And some judges will favor the large law firms where they know the partners, as opposed to a sole practitioner. While you can appeal bad rulings, often the expense of the appeal doesn't make it worth fighting. All along, you're trying to build the case and establish credibility with the opposing council, with the court, and with the clients.

How do you work with opposing counsel?
When many attorneys start out, they feel that when they're being attacked, they have to retaliate in like manner. But you really can't. Judges don't like it when attorneys argue. You don't have to be belligerent to win or to get the information you need. When we're up against corporations, individuals are the witnesses. Sometimes these individuals are not always aware of the negative implications of a corporate policy.

I had a witness on the stand on cross examination, an expert who worked for one of the large well-known, high-end foreign auto manufacturers. I was asking him how they handle the situation when they find a noise in the engine that shouldn't be there. He told me in front of the jury that they wouldn't call that a defect or repair it until the engine stopped working. So I questioned him: If that's their policy, then that means that until the car stops working in the desert or in the middle of the freeway, they wouldn't repair it under warranty? He was kind of taken aback. The case was made simply by talking with the other side and asking questions. The idea that you're going to get some great thing by badgering the witness is not correct.

Which Bible stories or verses have helped you withstand personal attacks?
One phrase that I've worked with a lot is "Our Father" from the Lord's Prayer (Matt 6:9). That includes everyone. So whether opposing counsel is attacking me or my client, which they often are, I hold onto the idea that God is "Our Father" -- for me, for my clients, and even for opposing counsel. This helps me not to react and gives me a sense of peace. I can't afford to react because it takes my thought away from what I have to do. There's too much riding on it.

Do you ever have issues with your clients?
I've always felt that everyone is entitled to representation, so I've represented clients that, in hindsight, I wish I hadn't. I won, but then the clients didn't want me paid, or they only wanted me to be paid to a certain extent which didn't allow me to get all my money because they wanted more than they were entitled to. There appear to be good and bad people on both sides. So that's hard because I'm trying to protect people and am taking huge risks by representing them. Ideally, we're working together: I know the law; they know the facts. So if there's a bad fact, they need to disclose that to me. If I know the bad facts, I can address and deal with them. As long as we work together, it works out well.2

What happens if someone doesn't disclose all the facts?
It hurts my credibility and their credibility, and we lose the case. I've withdrawn from cases when I've found my clients lying. Credibility is so important. As an example, dealers who I have sued refer their customers to me. One dealer I had sent a demand letter to called me. He invited me to come to the dealership to talk to any of their employees I wanted in order to verify for myself the facts of my clients' case. The dealer was doing this without conferring with his attorney. This was worth thousands of dollars in depositions that he was offering me. Throughout the discussions with everyone, it became quite obvious that my clients weren't telling the truth. Their further actions made it impossible for me to represent them. As an attorney, once you file a case, you can't walk away from it. You have to go to court and get the judge to release you. So I did. When you're respecting everyone and putting yourself in their shoes, you receive dividends in many ways.

How do you find peace amidst so much controversy?
I think about what I'm doing. I think that I've helped a lot of people. I think it's important work. The laws need to be enforced. Sometimes I have to step aside and know that there's a higher sense of law in operation. Even though I may have just been beaten up pretty badly, the law is still going forward. And hopefully a different litigator will get a better decision, prevail in the law, make headway, and set a better precedence.

Where do you seek peace?
It has to be within.

It's just amazing that you're able to face so much antagonism with grace!

About Susan Bates

I graduated in International Relations, but I couldn't put my degree to use because in those times, jobs for women were not available in international relations. A women could either be a secretary, teacher, or nurse. So I took a crash course in secretarial work and got a job working as a secretary for the president and vice president of a brokerage firm. Then I got my teaching credential and taught for a short time before having my three sons. When my boys were ages 10-13, I returned to school attending a night law school so I could have dinner on the table for my family before I left for school. I did some work for the Superior court while I was attending law school. After I got my degree, I worked for a law firm and then went into practice for myself. Of course, as an attorney, education is a continuing process.

1    Moffatt's translation of this same verse from Matthew is very insightful: "Be quick and make terms with your opponent, so long as you and he are on the way to court" (5:25).

2    Here's an example Susan gave, explaining why it's important to disclose facts:
We disclose facts to the other side, even unfavorable ones. It is better for us to disclose those facts on our terms than it is for the defense to bring them out and make them seem worse or different than they are, which will, at least, affect the credibility of the consumer. Just before going to trial with one case regarding a defective truck, that truck was in an accident. An over-loaded van ran into it, killing some of the van passengers. My client was not hurt. We thought the insurance company would declare the truck totaled. I asked the attorney for the manufacturer if it wanted the truck repaired or if the insurance money should be applied to the repurchase, should the jury find in the consumer's favor in our trial. The manufacturer directed us to have the insurance company repair the truck. The case went to trial based on the facts concerning the defects. (The jury was not told about the accident, as that had nothing to do with the underlying case, nor did it affect the defects. If we had not disclosed the accident, the defense could have used the non-disclosure to attack the credibility of the consumer.) The jury verdict was that the manufacturer had to repurchase the truck and pay my clients a civil penalty. The court then included in the judgment the expense of litigation, including my attorney's fees.

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