INCREASE YOUR CHANCES OF SUCCESS IN LITIGATION
By Benjamin B. Bohnsack

September 2009

There are several things a contractor can do to increase its chances of winning a lawsuit, or potentially avoiding one all together. Frequently, things happen that give rise to a dispute and the facts of the situation have already played out before either party realizes that there might be a problem. With the benefit of hindsight, many litigants look back on a situation and all too frequently say “If only I had done things differently.” The purpose of this article is to offer some tips that may help you to do things at critical times and hopefully avoid the common situation of regretting either doing or not doing something when the opportunity presented itself.

Document Things. This is probably the best advice this article will offer. Once a legal dispute arises, the outcome depends on what both sides are able to prove. Clients typically can tell the entire story of what happened, but the story is better told and substantiated with documentation that corroborates the story. The reason this is important is because there is always two sides to every story. The contractor recalls one thing happening, while the homeowner denies it. It happens all the time. Documenting what happens is a huge benefit if the situation ever ends up in court. Sending a letter or email, asking the other side to sign or acknowledge something, or taking a picture can sway the evidence in your favor. Without this kind of proof, it becomes a he-said-she-said dispute. These are always more difficult to prove. If you are at a critical point in a job or are concerned that there may be a problem later, write down the important information at the time.

Take Pictures. A picture is worth a thousand words. If there is a question as to whether a particular condition on a home existed on a certain date, take a picture of it and date it. Again, if the contractor contends that condition existed on a particular date, it is far easier to prove that fact with a photograph rather than simply relying on oral testimony. Again, success in litigation largely depends on what each party can prove, and pictures are a good way to do this.

Spot the Problem Customer. Figuring out quickly whether a customer is going to be a problem is important. Sometimes it is best to simply walk away from a job if you are not yet committed to it and think the customer will create problems. If it is too late to walk away, take extra precautions to protect yourself. If you agree with the customer or changing the scope of work, completion dates, delivery of material, or anything else, make sure you document the agreement, even if your ordinarily would not do so. Some customers can simply be trusted, while others can’t. In order to avoid taking chances, document everything, especially if you think the customer is likely to cause problems later.

Protect Lien Rights. Make sure you have a basic understanding of how mechanic’s liens work and what is necessary to preserve your lien rights. To enforce a lien, there are very specific requirements that need to be followed on a strict time schedule. Failure to follow these rules probably means you don’t get the benefit of a mechanic’s lien. Sometimes this is the difference of getting paid or not paid, and can also determine whether the other side pays your attorney fees or whether you pay them yourself. If you don’t start thinking about your lien rights until after a project is done and a dispute has arisen, there is a good chance you are too late. Be proactive on your lien rights to ensure the best protection for yourself.

Get Legal Advice Early. If you identify a situation where you think a problem might arise, call your lawyer and talk about it, even if it is only for 5 or 10 minutes. Taking a few minutes to try to protect yourself early can sometimes have a big payoff in the end. Your attorney may be able to advise you of various legal issues that would impact your case, and advise you on what to do in your specific situation. Bringing the case to your lawyer after the fact leaves little opportunity for him or her to correct the problem before it happens or minimize the damage from the situation.

 Benjamin Bohnsack practices in the areas of construction litigation, employment litigation and general civil litigation.

© 2009 Rinke Noonan.

This article is a general discussion of legal issues and is not intended to be legal advice. We would be pleased to review the specific facts and law regarding any given legal matter.