Your Legal Rights When a Client Won’t Pay, Part 3

We are thrilled to have Annette back for day 3! Annette Stepanian, attorney to creative professionals, is here to share here thoughts on what to do when a client doesn’t pay you. Make sure to jump back to Part 1 and Part 2, if you are just catching up.

What to Expect When You Take Your Case to Small Claims Court

You’ve decided that the way to recovering unpaid fees from your client is to file a case in small claims court. Here’s what to expect and how to prepare for your day in court.

Filing Your Case

Each state has different instructions and requirements for filing a small claims case – all of which can be found on the state court’s website or by visiting the court clerk’s office.  To file a claim, you will need to complete a court-provided form (referred to as a “complaint”) that identifies the parties and their addresses, your claim against the defendant, and the amount you allege that the defendant owes you. Remember, the amount you allege that is owed to you must fall within the court’s requirements, which can range from $2,500-$25,000 based on the state in which you’re filing your complaint. Once completed, you must file complaint with the court clerk and pay a small filing fee. The court clerk will then issue a hearing date for when your case will be heard by the judge.

A copy of the complaint and a summons must then be properly served upon the defendant or the action will be dismissed. In some states a deputy sheriff or a process server must personally serve a small claims court summons and complaint for a small fee. In many states, however, service can be accomplished by mailing a copy of the complaint to the defendant.

Once the defendant is served with the summons and complaint, he/she will be on notice that a hearing has been scheduled on the matter. The defendant then has an opportunity to file a counterclaim against you arising out of the same dispute.

Before the Hearing

If possible, visit the courtroom in advance and observe other cases. Doing so will prepare you for what to expect at your hearing.

In preparation of your hearing, compile all of your evidence including contracts, invoices, receipts, email communications, and other supporting documentation demonstrating that the defendant owes you the money you claim is due. If the defendant has filed a counterclaim against you, gather your evidence and thoughts so you can rebut the defendant’s claims. It is recommended that you make two additional copies of any material you intend to rely on – one for the judge and the second for the defendant. Most judges will require that the defendant have an opportunity to review any material you submit to the judge.

Get all of your facts in order and rehearse what you will say to the judge at the hearing. Know exactly what it is you want to get out of the suit. Court dockets are quite busy and you may only have a few minutes to make your case.

At the Hearing

On the day of your hearing, make sure to dress in a professional and respectable manner. Arrive early and check in with the courtroom clerk or bailiff.

Before calling your case, some judges require the parties to attempt to settle the case on their own and therefore order all the parties into the court hallway to discuss further. If your settlements attempts are futile, then you return to the courtroom and wait for you case to be called.

When your case is called, walk up to the designated areas before the judge. Usually, there are signs indicating where the Plaintiff and Defendant should stand. When asked by the judge, present your case and answer any questions he/she might have. Stay focused on the facts and issues of the case and keep your emotions in check. Always address the defendant, the judge, and court staff with respect.

After the Hearing

You may have to wait a few weeks before the judge issues a decision about your case. Depending on the outcome of the case, the losing party may have an opportunity to appeal the judge’s decision. Assuming you won your case and the defendant does not appeal the decision, the next step is to collect your fees. Hopefully the defendant will comply with the judgment and pay you. But if the defendant refuses to pay, you’ll need to take steps to collect on the judgment. A court can enter an order authorizing the sheriff to serve a writ of execution on the losing party. This writ permits the sheriff to seize and sell assets to pay the judgment.

Unfortunately, sometimes business relationships go south. That’s why it’s important to have a contract that clearly spells out each party’s rights and obligations. With a contract in place and an understanding of the available dispute resolution processes, you’ll be better positioned to protect your business should a conflict with a client arise.

Annette Stepanian is an attorney and creative business owner who helps creative professionals and entrepreneurs lay a legal foundation for their business. To learn more, visit www.annettestepanian.com*. 

Legal Disclaimer: This information is  for educational and informational purposes only; it is not intended as and does not constitute legal advice. and does not create an  attorney-client relationship between you and the author. 

*We receive a small affiliate fee if you purchase your contract from Annette Stepanian. We’d refer her even if we did not.

Your Legal Rights When a Client Won’t Pay, Part 2

We are thrilled to have a guest blogger today! Annette Stepanian, attorney to creative professionals, is here to share here thoughts on what to do when a client doesn’t pay you. Make sure to jump back to Part 1, if you are just catching up.

Mediation, Arbitration, Litigation, OH MY! What is the Best Option for Me if a Client Doesn’t Pay?

Contracts generally include a clause providing how the parties will resolve conflicts. There are three main ways in which disputes are resolved – mediation, arbitration, and litigation. Before drafting this clause in your own contracts, do your research and think carefully about the time, cost, and rights associated with each dispute resolution option.

Mediation

Mediation involves the parties meeting with an agreed upon neutral, third party (i.e. a mediator).   A mediator does not judge the case and does not provide interpretations of the law. Rather, the mediator facilitates communications so the parties arrive at a mutually acceptable solution to the dispute. As a less formal process for resolving disputes, mediation does not require that the parties comply with strict procedural and evidentiary rules. The goal instead is for parties to resolve the disputes between themselves. Although the parties can agree to be bound by the agreement reached through mediation, mediations are not necessarily binding on the parties.

Among its benefits, mediation is less costly than litigation. It does not require representation by an attorney and without the formal procedural and evidentiary rules in place, it can save a lot of money on court and lawyer fees. Mediation also proceeds much faster than litigation. It can be scheduled as it suits the parties needs, rather than waiting for your “day in court” which is progressively taking longer due to backlogged court dockets. Mediation is also less contentious than litigation. The neutrality of the mediator and the more relaxed environment creates a setting where parties are less hostile and adversarial. However, since the mediator is not in a position to make decisions, your effort might be futile if the parties become deadlocked in their negotiations.

Arbitration

With arbitration, the parties choose an arbitrator or set of arbitrators – who are usually retired judges or lawyers with specialized knowledge about the topic in dispute. The arbitrator(s) will review the case presented by the parties and issue a decision, much like a judge would in court. It is a more simplified process than trial, with arbitrators having more flexibility than judges on how to conduct the process and what weight to give to evidence. Arbitration can either be voluntary or mandatory, and the arbitrator’s decision can be binding (i.e. irreversible) or non-binding (i.e. reversible) – which can be agreed upon in advance in your contract. If arbitration is mandatory and binding, the parties are essentially waiving their rights to a court proceeding. Like mediation, arbitration is usually cheaper and faster than going to court, but the cost of hiring arbitrators can add up. If an arbitrator’s decision is binding, a party will have limited recourse to overturn it.

Litigation

Filing a lawsuit in court is the option most people think of when a dispute arises. However, many courts are so backlogged with cases that pursuing litigation can prove to be a very long process. Not to mention, litigation can also be quite costly, as you will likely need to hire an attorney to handle your case.   The delay and cost associated with having disputes resolved in court encourages parties to explore other forms of dispute resolution like mediation and arbitration.

Small claims court is a legal court of law designed to resolve disputes involving small amounts of money in an expeditious manner. The amounts vary by state, but range between $2,500-$25,000. If your claim falls within the prescribed amount, then pursuing your case in small claims court is an option.   If you do so, you must be prepared to attend the hearing and present your case to the judge as most small claims courts do not allow you to be represented by a lawyer. Fortunately, the procedural and evidentiary rules are simplified. After the parties present their case, the judge will issue a decision, which may or may not be appealed.

Before drafting your contracts, do your research and think carefully of how you will want to resolve any potential disputes with a client. Ask yourself the following questions:

  • How much will it cost to get the dispute resolved? Consider the cost of hiring a mediator, arbitrator, lawyer, court fees, travel, and/or time spent away from work and on this matter.
  • How much am I seeking to recover from my client?
  • How long will it take for us to have this dispute resolved?
  • Do I need to hire a lawyer to represent me and/or understand my legal rights?
  • What are the facts at hand and do I have strong evidence support my claim?

In the third and final post in this series, tomorrow, we’ll discuss what to expect when you take your case to small claims court.

Annette Stepanian is an attorney and creative business owner who helps creative professionals and entrepreneurs lay a legal foundation for their business. To learn more, visit www.annettestepanian.com*. 

Legal Disclaimer: This information is  for educational and informational purposes only; it is not intended as and does not constitute legal advice. and does not create an  attorney-client relationship between you and the author. 

*We receive a small affiliate fee if you purchase your contract from Annette Stepanian. We’d refer her even if we did not.

Your Legal Rights When a Client Won’t Pay, Part 1

We are thrilled to have a guest blogger today! Annette Stepanian, attorney to creative professionals, is here to share here thoughts on what to do when a client doesn’t pay you.

In the wedding industry, we have the great fortune of being paid upfront for services. BUT – what happens for those added hours after an event? Those occasional events where a client goes beyond scope and you need to invoice them? What happens when a client refuses? Annette is going to help us out. (And make sure to check out her contract templates for wedding professionals.*)

In this first part of our 3-part-series, Annette shares how to protect yourself upfront with a strong contract.

The Situation: The Client Won’t Pay

You’ve worked hard planning an event for your client. The event date has come and gone and you now find yourself chasing down your client to pay the balance owed for your services or to reimburse you for agreed upon expenses.

This three part series addresses how to minimize the risk of this happening to you and what options are available should you find yourself in this situation:

  • Because the available remedies are largely governed by the contract you entered into with your client, part one of the series discusses what contract terms and practices minimize the risk of ending up with a nonpaying client.
  • Part two discusses the three dispute resolution options most often included in contracts that will impact how you go about recovering unpaid fees.
  • And finally, part three addresses how to prepare to take a nonpaying client to small claims court to recover your fees.

It is imperative to have a written contract before you begin working with a client. Not only does a contract help clarify expectations between you and your client, but in the event of a disagreement, a judge is more likely to uphold an agreement if it is in writing.

Here are a few terms that should be included in your contracts:

Payment Terms & Schedule

It is important to make your payment processes and expectations clear in your contract. Most planners require an initial deposit before commencing any work, but then have trouble collecting the outstanding balance upon completion of the event. One solution is to not only request the initial deposit, but to outline a billing schedule in the contract. Instead of billing the entire balance at the end of the project, divide your fees into a payment schedule and distribute the payments into several invoices, with the final payment of your fees due before the event date. For each portion of the work you provide, send an invoice and indicate to the client that you will move forward with the work only if the invoice is paid in full.

Also, your contract and your invoices should clearly indicate the deadline for when invoices must be paid (for example, within 15 business days of receipt of an invoice).

Be diligent about sending your invoices at the predetermined schedule and implement a process to streamline this for you. Sending timely invoices and following up on overdue payments communicates that you are a professional and you expect to be paid in a timely manner for your services.

Late Fees for Overdue Payments

One method for incentivizing timely payments is to include a late fees clause in the contract. Although the maximum interest rate that is permitted varies by state, this clause may encourage a client from paying you on time so as to avoid the interest charge or late fee. Another option for incentivizing payment on an outstanding invoice is to offer a discount for paying on time. For example, the client can receive 1.5% discount if the invoice is paid within 10 business days. Again, indicate that all work will cease until outstanding payments, including any late fees, are received.

Document What Expenses Will Be Reimbursed

If you anticipate incurring out-of-pocket expenses related to the event that are not already accounted for in your fees, make sure your contract clearly outlines what specific expenses will be reimbursed by the client. As in the case of your service fees, indicate how those expenses will be invoiced and when such reimbursements will be due.

Despite having reimbursable expenses identified in your contract, it’s also a good practice to run all purchases by your client before personally incurring the cost. Better yet, have your client pay for the expense directly so you can avoid invoicing and waiting for reimbursement.

A Few More Tips

If you’re having trouble collecting your fees from a client even though you have a solid contract in place, here are few more tips on how to address the situation with your client:

  • Periodically send copies of outstanding invoices to the client via email and U.S. mail and follow up with a phone call if necessary.
  • Send your client a cordial, but firm letter outlining the terms of your contract and their responsibility to pay you. Enclose copies of your contract, invoices, receipts, and other supporting documents and state a deadline for receiving payment.
  • Sometimes a client withholds payment because they are dissatisfied with your service in some way. Use this as an opportunity to address their concerns and to provide better customer service.
  • If you’re making little progress, then work with a lawyer who can send a strongly worded demand letter to the client and/or help you pursue other remedies.

Despite taking all these measures, sometimes a client will still fail to pay. Assuming you want to pursue the matter further, the next post in the series will discuss the three most common dispute resolution options: mediation, arbitration, and litigation.

Annette Stepanian is an attorney and creative business owner who helps creative professionals and entrepreneurs lay a legal foundation for their business. To learn more, visit www.annettestepanian.com*. 

Legal Disclaimer: This information is  for educational and informational purposes only; it is not intended as and does not constitute legal advice. and does not create an  attorney-client relationship between you and the author. 

*We receive a small affiliate fee if you purchase your contract from Annette Stepanian. We’d refer her even if we did not.

Is It OK to Fire a Client? When and Why?

When you work in the wedding industry, the success of your business lies in finding and keeping new clients. There may come a day, however, when one of your clients makes you question whether or not the job is worth the effort. (Bridezilla, anyone? Groomzilla? MOTB-zilla?) How can you identify the type of client that just too much trouble to be bothered with, and how do you deal with the situation? If you want to build and support your brand as a wedding business, you need to be prepared to defend it, and that might mean firing the occasional client.

  Trump - You're Fired! from AnimateIt.net

When to Fire a Client

You’ve spent a great deal of time building not only your business, but your brand as well. You know exactly what niche you occupy within the wedding industry, and you have a specific quality of service you deliver to all of your clients. So what happens when one of your clients makes it difficult (or impossible) to maintain that standard of service? For the sake of maintaining your brand, your reputation, and the wellbeing of your business, you may need to direct that client to another company.

So how do you identify the type of client that should be fired? It is quite simple — if working with the client will require you to compromise your brand or your quality of service, it is not worth working with him or her.

Take for example the client who constantly changes her mind about what she wants from you. This type of client is never satisfied and causes you and your staff a great deal of stress in trying to keep up with her latest demands. If working with this client would cause you or your staff to compromise the quality of service, it may not be worth the effort. (It will likely also pull time away from servicing your better/ideal clients.) You may also need to fire a client if she continually refuses to pay or makes late payments, if she is disrespectful to your staff or vendors, or if she expects a level or type of service that doesn’t correspond to your brand.

How to Fire a Client

In order to ensure that you have the option to fire a client if need be, make sure your contract has a clause that allows you to do so. Somewhere in your contract you should state your right to terminate the client relationship if necessary — you should also outline the process for returning the client’s deposit and for receiving compensation for the work you have done up until the point of termination. With these protections in place, your client will not be able to argue that it is completely within your rights to terminate the relationship. (As always CONSULT a lawyer to ensure that your contract allows you to terminate the relationship.)

So how do you go about firing a client? If you have determined that you simply cannot work with this client, you need to tactfully explain the situation and return any money due to them. Write the client an email or letter explaining that you think she would be happier with another company. Do your best to keep the letter civil and avoid putting blame on the client. Simply state that you do not feel that you can meet the needs of the client and that she would be happier with another company.

What are your thoughts on this? Have you ever had to fire a client? Share in a comment below.

Be Sage Conference Speaker: Betsy Butwin, Friedman Iverson PLLC

We are thrilled to partner with a range of amazing speakers for our Be Sage Conference this August. When we sat down to set our curriculum for Be Sage, we asked ourselves: “What are the challenges that experienced business owners have in the wedding industry?” We came up with a list of questions and found the best people to speak on these topics.

Questions:
How do I franchise my business?
How do I license a service or product?

BetsyButwinIntroducing: Betsy Butwin, Attorney with Friedman Iverson PLLC

Betsy works with clients in the wedding, music, and creative industries. She helps entrepreneurs launch their businesses, draft and negotiate contracts, and manage their intellectual property. She also heads Friedman Iverson’s estate planning practice. She teaches intellectual property and contracts at the Institute of Production and Recording.

Betsy will co-presenting with our own Kelly Simants who will be sharing her own experience with the licensing of her wedding planning business, Sweet Pea Events.

3 How To’s you’ll gain from Betsy:

1) How to manage and make the most out of your business’ intellectual property
2) How to navigate and negotiate licensing opportunities; how to legally protect yourself in a licensing relationship
3) How franchises work and what are the legal requirements

We feel pretty strongly about partnering with companies and individuals that mirror and augment our own core values. Here are 3 core values that are fundamental to Betsy and how she does business:

1) Treat clients and co-workers with respect and integrity
2) Do great work
3) Help people pursue their passions

We hope you’ll join us this August!

BE SMART. BE BRIGHT. BE SAGE.

Ticket sales are open for Be Sage Conference.

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Here’s a little refresher if you missed our post last month about our new conference:

We want you to have a deeper business strategy that will take your business to the next level. This isn’t a business theory conference. And, while you will certainly be inspired, we aim to prepare you with actual tools to use in your business (not just a hope and dream.)

We will continue to add conference details at: www.besageconference.com

Greenhouse Loft, Chicago | August 3-5, 2014
Tickets go on sale February 10th at 9am PST