Ask the Builder: Don't take your contractor to court; do this instead
How many horror stories have you heard about homeowners who want to sue their contractor? These disputes arise for numerous reasons, but in almost all cases it comes down to defective workmanship. Sometimes it’s non-performance, when the contractor vaporizes and stops showing up at the job. In rare cases, it’s actually fraud in which the contractor takes a deposit and disappears.
Although I’m not an attorney and have never played one on TV, I have been an expert witness in construction lawsuits for more than 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.
A few weeks ago I reached out to my newsletter subscribers and asked any who are attorneys for their input on the subject. The ways disputes get settled can vary from state to state, but responses from attorneys around the country confirmed my own experience in the Midwest.
First and foremost, you need to know that absolutely nothing is guaranteed in the legal process. The best analogy I can offer is high-stakes poker. In a poker game, you get dealt cards. Typically, the best hand wins; however, as the song says, you gotta know when to hold 'em and know when to fold.
In the legal world, the facts and the expert witness reports are the game cards. The player with the best facts and reports tends to carry the day.
Only a small 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.
If you want to sit at this table, be prepared to spend tens of thousands of dollars — and, again, understand that there is absolutely no guarantee you’ll prevail. Even if you settle the case in your favor, by that point you may have spent thousands of dollars — and not all states permit you to recover your costs.
The legal process is long, expensive and straining. It’s like being in a taxicab going for a cross-country trip. The meter is running each day or week as the attorneys and experts rack up hours and hours of work on your behalf.
In almost all states, you can represent yourself in a small-claims court. But there are maximum award amounts in these venues, and if your claim is more, you need to do battle in a real courtroom.
Here’s the worst part, in my opinion — and where the gambling analogy breaks down. When you win at poker, you get to rake in the pot. In court, even if you go through the entire process and win the case, there’s no guarantee you will get the money!