By Lloyd Princeton
Lately, I have seen the exclamation in writing “If you don’t do XXXX, you will hear from my attorney.” I’ve heard it from a contractor who was expecting a refund that was not forthcoming and from an architect who was afraid his portfolio images might be incorrectly used. In each instance, I thought to myself, “Why is an attorney the first resort in this particular request/dispute?”
As I reflected more on the situations, it occurred to me that these matters could probably be resolved with a face-to-face meeting or, if really necessary, the threat of a small claims suit. I do not mean to trumpet the virtues of small claims court or to bash attorneys, but I believe it is worthwhile to explore ways to avoid over-responding to a situation and possibly setting forth a game of legal attacks.
As a practical matter, an attorney makes money by performing a service for which hourly charges are generally applied. While working on contingency does happen, this is usually reserved for larger matters involving a large pot of money at the end. In regular disputes, the clock starts ticking from the first phone call.
I have been quoted from $1,000 to $2,500 for retainers by mid-range attorneys to respond to situations, draft a response, etc. Depending upon circumstances, this can be a lot of money, and this is for just one side. The other side most likely will need to engage an attorney to respond and incur similar charges. Considering that small claims court is good for disputes up to $5,000 in many areas and can be filed for $15, this is a different league entirely.
And consider that it may be over $5,000 in legal fees just to send a demand and get a response, an amount that commits both sides to try and recoup these fees. People want this money back and probably think they have a valid position, or they would not have let things advance this far, so they dig their heels in a little more. You get the point.
That being said, rather than debate the merits of approach once a dispute starts, I would rather explore how to avoid a dispute in the first place. In the design industry (and perhaps many others), open communication before the issuance of an agreement is a critical first step to making sure that everyone’s needs are met.
Laying Solid Groundwork
There are multiple players in every project, each with a different duty, objective, and expectation. While the owner of a project feels he is the most important party in a transaction because he is paying for product and services, he is just a cog in the transaction wheel. You see, while he is financially obligated to pay for what they services rendered, he is also bound to the party he hired because he requested the help in the first place.
There should always be an equitable balance between the party providing cash and the party providing a product or service. In the words of one of my professionals, “They called us, it’s not our problem, and we are not living in the house—they are.” As a project develops, more vendors get involved and more client relationships are formed. So, it is important that everyone is clear about what has to be done, by when, and for how much.
Of equal importance to oral communication is the understanding of the written agreement. Expectations must be clearly documented so that if push comes to shove, everyone can refer to an agreement written in plain English.
It has been my experience that clarity and accuracy in an agreement help avoid the escalation of a matter, because both sides know what needs to be done. Both sides also know what is defensible and what is not. This is not to say, however, that someone cannot choose to be unreasonable or to issue spurious requests just because they can. Our judicial system is clogged with many illegitimate suits, generated purely because the plaintiff is betting that the defendant will settle before they go to arbitration or court. Nonetheless, most of the disgruntled people I’ve spoken with say that their original agreements were vague.
So, save yourself time and money, and probably more than a few grey hairs, by taking the time to talk through your needs and concerns, and then make sure your requirements are specified in writing. Then at least you have a better chance of avoiding unnecessary angst in your life!