You live in a suburban home just outside of Seattle, Washington. Your house is a little old, and you decide it needs a fresh coat of paint, along with some new exterior lighting. You do a Web search, find a contractor, and meet with him. You select the paint color and lighting you want, set a timeline for completion, and determine a price, paying him 50% up front. The contractor begins work on the lighting, but never finishes. He then paints half the house, but not in the color you selected. You try to confront him, and he gives you one excuse after another. What should you do?
Chances are, a contract for a relatively small-scale project like this one was for only a few thousand dollars, which makes hiring an attorney inefficient, to say the least. Fortunately, Washington offers a dedicated Small Claims Court in each county to resolve disputes of up to $5,000 without the assistance of lawyers. How can you utilize these courts to get justice?
Going to trial before a small claims judge isn’t easy. Even though the rules in small claims courts are simplified, it’s still a great deal of stress, preparation and work.
Instead of beginning in court, try negotiating with your contractor. These conversations aren’t always easy, but a conversation now could save you both time. Make clear that you intend to pursue your rights in court, unless the situation is remedied – either the contractor completes the job as promised, or refunds your money. Ask about the problem. Is the project more complex than first thought, back when the contractor agreed to work with you? Does he need more money for materials than initially thought? Perhaps you can arrive at a compromise that will get the job done.
Negotiation doesn’t always solve the problem, however, especially if your contractor refuses to come to the table or take a reasonable position. The next step is to write a strong demand letter. Such a letter is often taken more seriously by business owners, particularly if you explicitly state that you are “reserving all legal rights should a resolution not be worked out.”
Letters like these serve a dual function: They can later be employed as evidence that you tried to avoid court, and gave your contractor a reasonable chance to fix the error, or refund your money, rather than burden the court system. And they offer a perfect opportunity to sum up the facts of the dispute so far.
Mediation is another way to have a structured negotiation without needing a judge. In mediation, a third-party neutral helps to facilitate a conversation between you and your contractor about the issue at hand. Washington State, like Massachusetts and New York, has long been a pioneer in providing dispute resolution services to residents through Dispute Resolution Centers (DRCs).
DRCs are connected the court systems in many of Washington’s counties, and provide mediators free of charge. Consider mediating with your contractor; it will save you time, and often lead to a compromise you can both live with.
If negotiation and mediation do not work, litigation might be your only remaining option. Keep in mind that merely filing a lawsuit will sometimes jumpstart a negotiation with a contractor, since he will see that you are serious. Ironically, suing is sometimes the best way to facilitate an out-of-court resolution.
In Small Claims Court, you are largely on your own. While the clerks can help you, they cannot offer you legal advice. Moreover, attorneys are not permitted to appear on your behalf (or the defendant’s behalf) unless the judge specifically allows it.
When you file, the statutes of limitations for your claims are important factors to consider. These statutes limit the amount of time a plaintiff has to file a particular claim. The most common legal causes of action against a contractor are breach of contract (“I wanted a green house, and she painted it red!”) and property damage (“He ruined my carpet when he was supposed to be doing floor repairs!”). Washington has a six-year limit under Wash. Rev. Code § 4.16.040(1) and a three-year limit under Wash. Rev. Code § 4.16.080(2) for property damage. Try to file within three years, or you might find portions of your damages dismissed.
Remember, you must sue the defendant contractor either in the county court where its offices are located, or where the event that is the basis for the lawsuit occurred – in other words, your home, where the contractor was supposed to do the work. Most plaintiffs prefer to sue in their home county, since this is more convenient and provides a certain degree of “home court advantage.” The county clerk will charge fees when you file your lawsuit, which are pretty reasonable – usually between $14 and $29, depending on the county.
After paying this fee, you’ll file your actual lawsuit through a document called a Notice of Claim Form. This form can be filled out electronically and in person, or you can download it and bring the completed version to court. A typed version will look more professional and organized. You’ll need to provide names, addresses, and phone numbers for both yourself and the defendant contractor (or his business entity name).
You’ll then need to describe your claim, including the damages you believe you are owed. Take care not to exaggerate the amount of damage claimed, since you’ll need to prove the full extent of those damages and could harm your credibility by overstating them.
You only have a short space in which to describe your case. Don’t waste it on legalese, or Internet research on laws you don’t really know. Judges will know the details of the applicable laws; your role is to describe the facts of your case in a succinct, clear manner.
After the Notice of Claim is filed, the clerk will send a copy to the defendant contractor along with a notice to appear in court on a specified date. That will be the date when you each orally present your case to a judge. The contractor will also have an opportunity to send a reply to the court before the trial, which is similar to the Claim you wrote, except from his perspective. You can expect the contractor to deny, or recharacterize, the story that you’ve written.
Judges, not juries, hear small claims cases in Washington. Judges can ask you questions as you present your case orally, seeking clarification on any aspect of your case. It is therefore important that you know your lawsuit fully – the date of every email, the amount of every bill, and the day-to-day events that resulted in the lawsuit.
Prepare what you will say in your one to two minutes when speaking to the judge by rehearsing it in front of a friend or family member. Remember, judges have large caseloads and see dozens of litigants every single day. Weed out any extraneous facts and notice what aspects of your claim produce the strongest reaction from your test audience.
Evidence is important too. In litigation with contractors who have worked on your home, the most important evidence will ordinarily include: 1) Any written contracts between you and the contractor outlining the work he promised to perform, the timeline for performance, and the payment agreed upon; 2) Any proof of payments from you to the contractor, showing how much money you have already paid out; 3) Any emails, letters, or other correspondence you’ve sent to the contractor outlining your dispute; 4) Photographs of your home before and after the work, especially photos that show shoddy or inadequate workmanship.
In some circumstances, you might also bring witnesses with you to court to describe elements of the story to the judge.
Winning your case in small claims court entitles you to a judgment from the court. The judgment is essentially an order saying that the contractor must pay you some amount of money. (Small claims judges are only empowered to order that you are paid an amount of money between $1 and $5,000. They cannot order that your contractor complete work on your house or fix errors, for example).
Most business owners pay judgments immediately, in part because they fear negative relationships with banks and community members. However, your contractor might not be so willing to pay. If he fails to pay you within 30 days of the judgment, you’ll need to return to court and fill out additional paperwork called an Application for Writ of Garnishment, which will allow you to “attach” (i.e. collect upon) assets held by the contractor in bank accounts. This process is time-consuming, and the court will require you to hire a third-party company to facilitate the actual collection.