Suing a Contractor for Poor Workmanship
Suing a Contractor for Poor Workmanship - Go to a Casino
How many horror stories have you heard about homeowners who end up wanting to sue their contractors? The reasons are as plentiful as grains of sand on a beach. In almost all cases it comes down to defective workmanship. Sometimes it’s non-performance where the contractor vaporizes and stops showing up at the job. In rare cases, it’s actually deceptive fraud where the contractor takes a deposit and disappears.
Tim, Have You Been an Expert Witness?
Although I’m not an attorney and have never played one on TV, I happen to know quite a bit about the legal process and playing field. I’ve been an expert witness in construction lawsuits for over two decades. My last case had me inspecting the roof of the Brazilian Ambassador’s home on the island of Antigua. I’ve been deposed more times than I care to remember and I’ve sat in the witness chair in several courtrooms.
I’m very fortunate to have published my own free newsletter for over twenty-five years. A week ago I reached out to any and all attorneys who happen to be subscribers for their input. The USA is unique in that the laws about how to settle disputes vary from state to state. I received feedback from several attorneys spread out all over the USA that helped buttress what my own experience was back in the Midwest.
Am I Guaranteed to Win in Court?
First and foremost, you need to know that absolutely nothing is guaranteed in the legal process. Well, you are guaranteed to pay your attorney and any experts thousands of dollars. That's where the guarantee ends.
The best analogy I can offer you is it’s a high-stakes game of poker. In a poker game, you get dealt cards. Typically the best hand wins assuming all the players are knowledgeable about what cards are best.
What Wins Lawsuits?
In the legal world, the facts and the expert witness reports are the game cards. That player, either you or the contractor, with the best facts and reports tends to carry the day. You need to be prepared to spend tens of thousands of dollars in this legal game realizing that there is absolutely no guarantee you’ll prevail. That strategy almost borders on insanity. You’d do better to take your money and sit down at a blackjack table in a casino assuming you know how to really play blackjack.
Is the Legal Process Expensive and Long?
The legal process is long and straining. It’s like being in a taxicab going for a cross-country trip. The meter is clicking each day or week as the attorneys and experts rack up hours and hours of work on your behalf.
Can I Use Small Claims Court?
In almost all states, you can represent yourself in a small-claims court. Some states have maximum award amounts in these venues and if your claim is more, you need to do battle in a real courtroom. Some states allow you to represent yourself in any matter. Trust me, the legal process is more complex than the hardest crossword puzzle you’ve ever attempted to solve. It’s not for the faint of heart.
How Many Cases Go to Trial?
Realize that a very tiny portion of disputes even make it to the courtroom. Almost all of them are settled before going up the courthouse steps. It almost always boils down to the quality of the expert witness reports. The party in the case with the weaker report folds just like in a poker game.
How Much Money Does it Cost to Sue a Contractor or Builder?
By the time you get to this point where you settle, you could have spent thousands of dollars and not all states permit you to recover your costs to get the money. If you go all the way through with a trial, you could easily spend $25,000 to $50,000. This number represents what it might cost in the year 2021.
Will I Get My Money When I Win in Court?
Here’s the worst part in my opinion. Even if you go through the entire process and win in a courtroom, there’s no guarantee you get the money! In almost all states, you leave the courtroom with a judgement. You now have to start a different process to try to collect the amount of the judgement. Oh, and then don’t forget, the losing party has the right to appeal the decision in almost all states! Now the taxicab meter starts all over again.
Remember, there’s no guarantee you’ll ever win.
What Can I Do to Prevent Suing My Builder or Contractor?
Knowing all of this, you may ask, “Tim, how can I prevent all this hardship and financial loss?” Books have been written on this topic. On my AsktheBuilder.com website, I have no less than twenty columns devoted to the topic.
Here’s the shortlist of how you can avoid going to court. First, all jobs have to have fantastic plans and specifications. You need to communicate clearly to the contractor exactly what you want and the level of finish quality. You can do this with photographs you get from the Internet.
You need to go inspect the work of the contractor. This means you go to other houses where he’s done similar work you’re going to have done. You talk with the homeowners. This is hard, it takes time, and it can be uncomfortable. If you fail to do this due diligence, you’re basing your decision on hope.
All of the attorneys that answered my plea for help agreed that you should have an attorney review your contract with the builder before you sign it. Payments should only be made for work that’s satisfactory. You need to collect affidavits from all contractors and suppliers before you hand over your money. These are legal receipts that prevent a contractor from filing a valid lien on your home.
Talk to your attorney before you forward a deposit. Find out how you can get the best protection against holding a pair of twos in this high-stakes poker game. You want a royal flush so you know.
Top Questions to Ask Your Attorney
Let's imagine you read all of the above and are still bound and determined to sue your contractor.
You schedule a meeting with your attorney.
Attorneys bill by the hour. Here's how the meeting should be handled in my opinion.
Do NOT start the meeting by giving the entire timeline of events and listing all the things the contractor did wrong. This is a waste of time. I know you want to vent, but the attorney doesn't care about all this.
You should just say, "My contractor has done poor work, he's no longer showing up and I want to try to recover my money." Period. Don't say anything else.
Then ask these three questions:
- In our state, if I hire you to resolve this matter does the contractor have to pay your fee as part of the settlement? The answer will almost always be NO. Do you understand the implications of this? If you're trying to get $10,000 from your contractor and it COSTS you $10,000 in fees and costs to get it, you got nowhere.
2. I understand that to initiate the process to sue, I will have to go through discovery, depositions will have to be taken, expert witnesses will have to be hired and reports produced. To get all of this work done, how much will it cost for each of those steps to get this far? Have the attorney attach a number to each of those three steps. The number will probably be in the range of $10,000 to $20,000. Expert witnesses hire out at about $250/$350 per hour. The expert witness fee alone could easily be $5,000.
3. What percentage of cases actually go to trial? What does it cost to go through the trial phase? You'll discover that very few cases go to trial. The trial will cost easily many more thousands of dollars. Most cases are settled out of court after the expert witness reports are filed. You'll negotiate a settlement. Let's say you originally were trying to get $50,000 from your contractor. You'll be lucky to extract $20,000. And if you spent $20,000 to get this settlement, you end up with NOTHING.
Remember, there's NO GUARANTEE you're going to win or even come out on top in a settlement! It's all up to who has the BEST expert witness!
Check out the April 1, 2021 AsktheBuilder Help Request for more on this topic.