If You Can't Beat 'Em, Sue 'Em!
by Bob Werre

If you've been in the photography business any length of time, you've had to deal with the "slow pays" and perhaps with the "no pays," as well as the highly sought-after "fast pays." The "slow pays" deal with our place in the food chain and can be very survivable if we have enough advances and fast-pay clients. The worst problem is, of course, the outright "refusal to pay" client.

Phone calls and letters of demand seldom have any effect once a client chooses to be nasty. Bringing in outside sources, i.e. collection agencies and lawyers is probably the best choice if you have a decent-sized invoice pending (probably a very good reason to bill at high rates).

My recent problem involved an outstanding invoice of slightly less than $2,000 with a local designer. The work I produced had been accepted and was used almost immediately after production. The disagreement was over the amount and type of usage. The designer, confronted with the fact that I had been deceived as to the usage, came back with that tired old "When I buy it, I own it" routine. After the usual letter and a couple of attempts at compromise, I found myself going nowhere very slowly.

I decided that Small Claims Court would be the best place to pursue my claim. "Playing lawyer" was an interesting lesson that included a lot of homework and even more patience. Legal papers had to be filed. These were critical, because I had to be certain that I was suing the proper owners, that I had the right address, etc. Some of the court clerks were helpful-but they would not give any outright advice. The cost of this process varies; in my case, it was around $60. This included the filing fee and the fee to have a constable or other officer of the Court hand-deliver the papers to the defendant. The designer would not allow the constable into his office and locked him out. Therefore, an additional form had to be completed and filed with the Courts to bypass the hand-delivery aspect.

Next, a trial date was set. I had lots of homework to do before the Big Day. I accumulated relevant information, such as delivery memos, invoices, purchase orders, and copies of the work used, as well as out-takes from the job. Other useful information included notes about changes in the work that occurred during the production, e.g., extra shots, the client's showing up late, and any other variations from my proposal or the client's purchase order. I was advised that I could ask an assistant, model, or fellow photographer to act as an expert witness or on-the-scene witness. I asked Thaine Manske, long-time ASMP member and friend, to help as an expert witness. I wasn't sure of the judge's preconception regarding our business practices or basic copyright law, and I thought that Thaine's testimony would be helpful in backing me up.

Before the trial, I was asked to go through mediation to try to settle my differences with the client. For some people, this might be both necessary and desirable, especially if there are any gray areas in the case (for example, if there is a degree of fault on both sides). If a case is settled, the mediator can secure some money and probably obtain a check on the spot. In my case, splitting the invoice in half was out of the question. The client had gotten extra usage, and the shots were well done and were being used. I just couldn't compromise any more, so I rejected the mediation. At this time we were rescheduled for a session before the judge. Each party then had the opportunity to present its side. I tried to keep things well documented and simple, and this approach was successful. I told the judge that I had done the work, it had been used, and I needed to be paid!

That, I believe was the deciding factor. The defendant brought up a couple of instances of hearsay, and that was it. The lack of documented evidence seemed to prove deadly to his argument. With Thaine as an expert witness and my wife as an on-the-scene witness, I managed to get an award of all but $50 of my invoices. The defendant then had 30 days to appeal or settle the judgment.

I received a check for a partial payment with a restrictive endorsement on the back. With advice from Bruce Blank (ASMP-National) I held the check, hoping the remainder would be forthcoming. It wasn't. After checking the bank's automated teller system, I determined that the defendant had actually put a stop-payment order on the check. At that moment I was somewhat confused: I had won the judgment, but I had spent a fair amount of time and effort, and some money too, and still had empty pockets. Had I lost the war?

The next step was to take several deep breaths, return to the Court, file additional paperwork, and pay another $65 asking the Court to have the constable use additional means to satisfy the judgment. Although my understanding was that in Texas, the laws tended to protect the guilty in such civil matters, I found three possible means of obtaining justice. One was to seize personal property relating to the business, the second was to put a personal lien upon real estate, and the third was to seize a bank account. Options two and three would have been problematic to accomplish without an attorney. Because of the relative size of the judgment, option One was my only feasible choice. The deputy assigned to my case did succeed in speaking with the designer, and he assured him that he would comply by making three monthly payments to satisfy the judgment. So he managed to buy himself more time. I personally was getting more pessimistic and didn't think he would comply. Darn!

The next conversation I had with the deputy revealed that the designer had not made a payment. Moreover, his conversation with him had apparently deteriorated, resulting in the deputy's observation, "He's not a very nice person." Next we tried to enter the designer's office to either get a check or seize personal items. This adventure proved fruitless. Simply by not opening the door, he was able to prolong the process yet again. Curses! After one additional attempt by the deputy, I decided to become an active participant in this process-after all, I've watched enough TV cop and lawyer shows. I decided that a "sting" was in order.

I either knew or could assume several things: he probably had caller ID, he kept his door locked, he probably ate lunch in his office, and he kept irregular office hours. I decided to have a friend who works at a firm with a respected name call the designer about an appointment, inventing an upcoming project. I had a second friend actually make the appointment. Making this appointment would assure us that he would be at his office, assuming that he could not afford to turn away a new customer. And by introducing a second person into the equation, I hoped to add some helpful confusion that would take us in for the final play-anything to get him to open that door!

At approximately 10:30 on Tuesday, October 26th, my friend, two deputy constables, and I gathered. My friend tried the designer's door and found it locked. He then knocked and announced that he was here for the meeting, although the second party (my other friend) was running late. He opened the door with a big smile and ushered him in. The two deputies sidestepped into the office immediately behind him. They were in!!! They summoned me from the parking lot. Meanwhile, the designer tried to deny his identity and claimed that his company had been sold to "someone" in New York. However, upon my arrival, I quickly confirmed his identity. Beyond that, his inability to produce a bill of sale made it clear that he could still "lie like a rug"-but this time, we were wiping our feet on it!

An hour later a cashier's check covering the judgment, 10% interest, and constable's fees was in my hands. To tell you the truth, it had never been my idea of fun to deal harshly with (past) clients, and I still can't say that it's exactly fun. However, I've known too many former colleagues who were gradually put out of business by this sort of thing, and I wasn't about to let that happen to me. And besidesÉbeing "Detective for a Day" was really a rush!

- Bob Werre