Perhaps the most amusing, but insightful, response to my column on my dates in small claims court (October 2007) was from Dave Lindell, a California land surveyor. "I’ve had to sue a half dozen times to get paid," he said. "I’ve never failed to get a judgment in my favor. [One] lady refused to pay because the property line as marked by me was not where her neighbor told her it was. He told her the property line was 30 or so feet northerly, and those were her trees that she had to trim. She believed him and paid to have two dozen trees trimmed! She told the judge in court that I threatened to sue her. I told the judge it wasn’t a threat because, ’Here we are!’"
My experiences confirm his problem with homeowners, as opposed to developers and engineering and surveying companies. A homeowner has problems understanding what we face and what we must do when making a study or writing a report. Most of my problems with collecting bills have involved small amounts owed by people who do not understand why we charge "so much." I think that is one of the main reasons small claims courts exist.
Although not exactly concerning small claims matters, Michael Fussell of Fussell Engineering, Missoula, Mont., wrote, "We recently had a set of drawings stolen and used for two other projects without our permission. The drawings had our copyright language on them, but it appears that since we could still use our drawings after they were stolen, they were not really stolen and thus we cannot get much in the way of damages. We managed to stop their use before anything was constructed so one could say we had no [loss]. It appears that the going rate for stolen drawing packages is around $20,000, so if you would normally charge $100,000 to produce a set of drawings, the contractor or developer is better off stealing your drawings and paying $20,000 plus some attorney’s fees. It does not appear that [the work of] engineers and architects is respected by the courts."
Charles E. Pound, of Aqua Dredge, Inc., in the New York area, offered the following solution to getting paid: "Recently, as a subcontractor on a major public works project, the prime [contractor] was refusing to pay us for work which we had completed and which had been approved and accepted. After torturous unpleasant exchanges with the prime, we contacted the public agency and under the Freedom of Information Law demanded copies of the certified releases the prime had submitted with [his] monthly payment requisitions. The forms indicated that they had certified that all subcontractors had been paid. A call to the public agency indicating that we would institute action [against] the prime contractor for falsification of records brought an immediate resolution whereby the public agency paid us directly and subtracted the amount [owed to us] from monies owed to the contractor."
Christian A Galindo, president of a firm in Bryan, Texas, sent a long e-mail that told of his problems with payment. He described some of his problems with large bills unpaid and ended, "Moral of the story: Stay away from attorneys. They are worse than deadbeat clients! I should have gone to small claims court without representation. I did so once before in the mid 90s to collect $750. I won, filed a lien, and eight years later I collected $1,600."
Finally, Irving Kinney, Jr., a surveyor from New Jersey, wrote: "My experiences [in small claims courts] are quite similar [to yours], always having been sent to the hallway to [try to] come to acceptable terms but never [getting them]. I once had a client who [failed] to pay a bill and [I] had all the documentation to prove it, but the client and his attorney kept me and my attorney in court for two full days. Yes, I got my judgment of $1,900, but my attorney cost me $4,200. It was an expensive message to send out to the unscrupulous. Now my maps, plats, plans, and legal descriptions are released at the time of payment, and this seems to work quite well."
An engineer or surveyor must carefully balance what he or she can gain by going to court—how much it will cost in legal fees to win an award, and how much time will have to be devoted to the small claims endeavor. It should be a business decision: Do all the negative aspects of a lawsuit outweigh the advantages—the possibility of receiving payment in full for the time originally spent on the project.
Not all small claims events are worth the time and effort expended to receive payment. Be careful about accepting clients whom you suspect aren’t worth the financial risk. If you are hungry for work during a "down" period in your business, you might want to ignore this advice, but in the end, it is a business and financial decision that has to be made, not a technical one.
Alfred R. Pagan, P.E., P.L.S., is a consulting engineer in Hackensack, N.J. He can be reached at 201-441-9719; or e-mail him at firstname.lastname@example.org.