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Need ammunition to fight an unjust Small Claims Court decision!
Thread poster: Trudy Peters

Trudy Peters  Identity Verified
United States
Local time: 01:26
German to English
+ ...
Aug 28, 2004

An an immigration lawyer in my city (Anytown Ohio, USA) commissioned me (my company) to perform a service. I performed the service and sent him an invoice. He never paid the invoice, because HE had not been paid by HIS client!! I told him that whether or not he receives payment from his client is totally irrelevant. The contract is between him and me, and not between his client and me.

Well, after 8 months of this, I filed a claim against him in Small Claims Court. Another lawyer I work for and several other clients guaranteed me the I would win. But guess what?? The magistrate and reviewing judge found in the defendant’s favor!!! I am so furious I can’t see straight! Don’t lawyers understand Business 101? Don’t they understand that this is not a contingency case?

What can I state in my objection that could conceivably overturn the decision?? I don’t know what to say that I didn’t already say in my original complaint (see first paragraph above). Any ideas would be greatly appreciated!

And all this over $100!

Trudy


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Andy Lemminger  Identity Verified
Canada
Local time: 23:26
Member (2002)
English to German
Reason Aug 28, 2004

How did they justify their decision?

Andy


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Vladimir Dubisskiy  Identity Verified
United States
Local time: 00:26
Member (2001)
English to Russian
+ ...
what if Aug 28, 2004

Trudy,
How about writing a nice letter to the local (or higher) Bar Assoc saying smth about 'such practices by your member establish a nasty precedent, making the whole members look low..'(smth like that, you know). Then prob. try to find some support in local media, - "if this person behaves with his/hjer business partners like this what clients can expect..."...

It may help... (and try not to spend more...)

I mean try to make the whole story open, public.

[Edited at 2004-08-28 18:24]


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Trudy Peters  Identity Verified
United States
Local time: 01:26
German to English
+ ...
TOPIC STARTER
Andy Aug 28, 2004

Andy Lemminger wrote:

How did they justify their decision?

Andy


**The Magistrate finds that the plaintiff has failed to prove by a preponderance of the evidence a right to recover against the defendant.**

My client had, in the meantime, gotten paid by his client (or so he says) and was waiving $100 in cash around in the courtroom, which he "WOULD have paid me, had I not...."

So who the h... does owe me the money according to the magistrate/judge?


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xxxPRen  Identity Verified
Local time: 01:26
French to English
+ ...
Excellent idea Aug 28, 2004

Vladimir Dubisskiy wrote:

Trudy,
How about writing a nice letter to the local (or higher) Bar Assoc saying smth about 'such practices by your member establish a nasty precedent, making the whole members look low..'(smth like that, you know). Then prob. try to find some support in local media, - "if this person behaves with his/hjer business partners like this what clients can expect..."...

It may help... (and try not to spend more...)

I mean try to make the whole story open, public.

[Edited at 2004-08-28 18:24]


Hi Vladimir, excellent idea - and maybe cc the lawyer in question with the complaint to the bar association

Paula


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davidgreen
German to English
evidence Aug 29, 2004

Small claims is pretty clear on one hand. You provide enough evidence and you win. It's important to keep in mind that your ideas of "justice" etc. are irrelevant, it's just what proof you can offer. Consider what proof you could obtain (email, other correspondence, dated computer files etc.). If you can't bring anything new to an appeal forget about it. I would say the main thing to keep in mind in any sort of process like this is that you should try to enjoy it as a "game" because the money is rarely worth it.
Good luck if you continue.


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Mónica Machado
United Kingdom
Local time: 06:26
English to Portuguese
+ ...
When a payer is a bad payer... Aug 29, 2004

Hello,

I think that when someone does not intend to pay there is nothing we can do:-( Unfortunately, people who do not pay as a rule have everything planned to go on with it and get free in court. They are experts on the matter... you see?

So, if I have a client that fails to pay me on time I send him a nice e-mail asking whether my invoice had anything wrong or has been lost. If the client answers saying that he had overlooked it but it will be paid in the next days and I get paid everything is well (this is what I call "group one", further on).

If the client doesn't answer to my polite e-mail in a week time I send another nice e-mail saying that if he fails to answer my e-mail I will have to inform my fellow colleagues that he/his company is having bad practices in what concerns payment. Well, I also say that I am sure he/his company understand my position and would act the same way were he/his company in my position.

Usually this letter/e-mail gets some answer and corresponding payment but when it doesn't I just go out and advert the matters to others in sites that welcome this sort of information.

Going into court doesn't get the money back and gives us to much hassle. Also, does not advert their bad payment practices to others and they still can have another bold translator to work for them free.

I get terrific results with this and have no outstanding invoices. Off course I wouldn't work for this client again unless he fits on the first group above. And being member of three translator's associations does help a lot since I can reach a lot of people in the industry with one simple e-mail.

Best regards,
Mónica Machado
English into European Portuguese Translator
Member of APT, IOL and ITI


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Henry Hinds  Identity Verified
United States
Local time: 23:26
English to Spanish
+ ...
Be Careful Aug 29, 2004

Be careful about who you deal with. When you are in a position that you have to go to court to collect, you've already lost. As you can see, the fact that you are right is no guarantee you will get justice; and even if you win in court, the judgment may never be paid.

The best policy is to be as careful as possible up front.


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Trudy Peters  Identity Verified
United States
Local time: 01:26
German to English
+ ...
TOPIC STARTER
I don't care about getting paid anymore Aug 29, 2004

Henry Hinds wrote:
As you can see, the fact that you are right is no guarantee you will get justice; and even if you win in court, the judgment may never be paid.


I just want the judge to find in my favor. I've worked for this guy a few times before and never had a problem except for a couple of late payments, but this business about not owing me anything because his client hadn't paid him, raised my blood pressure to unacceptable levels

I'm going to take this all the way to the Supreme Court, if I have to)


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Vladimir Dubisskiy  Identity Verified
United States
Local time: 00:26
Member (2001)
English to Russian
+ ...
exactly Aug 29, 2004

I mean try to make the whole story open, public.

[Edited at 2004-08-28 18:24][/quote]

Hi Vladimir, excellent idea - and maybe cc the lawyer in question with the complaint to the bar association

Paula[/quote]

Exactly! It may work.


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Vladimir Dubisskiy  Identity Verified
United States
Local time: 00:26
Member (2001)
English to Russian
+ ...
feud is not a way out Aug 29, 2004

Trudy Peters wrote:

I'm going to take this all the way to the Supreme Court, if I have to)


Dear Trudy,
You can lock yourself in the bloody feud with the lawyers' circles, and (as i see it) it is not exactly your turf.

I would try to make the whole case widely open and see what will happen. My be your opponet will back off..


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Uldis Liepkalns  Identity Verified
Latvia
Local time: 08:26
Member (2003)
English to Latvian
+ ...
I agree- make it public Aug 29, 2004

A joke:

Q: "You're trapped in a room with a tiger, a rattlesnake and a
lawyer. You have a gun with two bullets. What should you do?

A: Shoot the lawyer. Twice."

Uldis


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Luis Arri Cibils  Identity Verified
Local time: 00:26
Member (2003)
English to Spanish
+ ...
Some missing points of law. Aug 29, 2004

Trudy,

As I understand what you said, there is no question as to the existence of an agreement or your full performance under the contract. The only issue is who is liable for payment under the contract. The lawyer asserted in court that he is liable only to the extent that he receives payment from his client; you assert that under Business Law 101, the attorney is liable whether or not he is ever paid from his client.

I am going to elaborate below on that hypothetical case. Certainly, I don't know the specific facts and can talk only in general terms. If you want a legal opinion, you should talk to a local lawyer and let her or him know all the specifics. That attorney will then be able to render a legal opinion.

For whatever it is worth, here it is my discussion of the above described hypothetical:

Under general Agency Law, an agent entering into a contract on behalf of a principal, it is NOT liable under the contract if the agent has fully disclosed to the other party: (a) that he or she is acting on behalf of a principal, and (b) the identity of the principal. Arguably, the attorney did just that. You knew that the work was for the attorney’s client and, likely, the identity of that client (Since the translation work was for an immigration matter, it is likely that involved translation of birth certificates or similar documents disclosing the party identity.) Whether this is sufficient to release the attorney from any direct liability under the contract is a question of fact, an evidentiary issue.

Of course, you will say: But isn’t true, as a Business Law 101 point, that freelance translators working for translation agencies can expect to be paid whether or not the agencies collect from the end-clients? Aren't there in those cases two separate contracts (one between the agency and the end-client and the other between the agency and the translator) each of them to be honored independently regarding performance under the other?

Indeed, you are right. In our business, that type of relationships is interpreted as involving two separate contracts, each one standing on its own. The so-called “translation agencies” are nobody’s agents, neither the end-client’s nor the freelancer’s. Truly, they are translation companies. They buy translations from the freelancer, hopefully they polish them by proofreading and editing them, and then they sell them, at a profit, to the end-client. No agency relationship whatsoever, between them and neither of the two other parties. While it is still possible for a translation agency to act as a true agency (thus, being able to escape liability for payment until they are paid by the end client), that should probably be in the contract between them and the freelancer. If the contract is silent on this point, a court would likely interpret it as including an obligation to pay the translator under all circumstances, by reading into the contract terms that are the usual practice in the business.

But a LAWYER IS NOT A TRANSLATION AGENCY. Lawyers usually bring other professionals on board, to help with their cases. But, often, the contracts under which those other professionals work are between the lawyer’s client and the professional. The lawyer acts simply as an agent, not liable under that contract. Because those contracts involve payment in the tens of thousands, this is usually spelled out in the contract to avoid any dispute.

Thus, whether your contract was one where a lawyer was liable or simply an agent of a fully disclosed principal is open to interpretation, a question of fact for the fact-finder (jury or judge, depending on the case). You must put forward evidence, not simply rely on what is common business practice in an area where the lawyer is not in business. That is a point that translators must be aware of when dealing with intermediaries who are not “translation agencies” (e.g., lawyers, MD’s asking for translation of patients’ medical history, etc.) Always make sure that the intermediary will accept full responsibility for payment, either putting it into the contract or requesting confirmation to an e-mail saying: “I got the file to translate. Before starting, I would like you to confirm by reply e-mail that you will be fully responsible for payment, regardless of your client/patient's payment to you," or similar language.

You may have a few alternatives. Among them, do nothing. I know that at this time you only want the satisfaction that a court say you are right. However, you may not technically be right. That is a question of fact. Also, do always remember that courts are not administrators of divine justice. As I always tell my non-lawyer friends, courts are just the best available, civilized alternative to the O.K. Corral.

You may also appeal. I assume that the appeal, in your case, is to the District Court. The good thing is that the Dist. Ct. will do a "de novo" review. Thus, unlike appeals to the Court of Appeals, you will be able introduce new evidence. But be prepared to show that the contract was not one where the lawyer acted just as the agent of a fully disclosed principal. You can’t rely on what is common practice in dealings between freelancers and translation agencies, because the lawyer is neither.

You may also change tack. If the lawyer has said that the contract is between you and the client, you may take him at his word, perhaps requesting confirmation of the full client’s identity to bring the client to court. But you must check many facts with a lawyer first. This is a suggestion of a possible course of action to explore, not an advice for you to implement. I can’t advise you since I lack knowledge of many pertinent facts.

There are other possible courses of actions. I can’t discuss all of them. I must, however, warn you against some well-meaning, yet dangerously wrong advice you have received on this thread.

Going to the Ohio Bar Association is likely ineffective. It is likely that the Bar will not get involved in what is just a business dispute between parties other than alawyer and that lawyer's client, the main concern of those associations. But, even assuming that they get involved and send a letter to the attorney informing him of your complain, the lawyer will simply answer with a photocopy of the court order. Case closed.

If you go to the paper, with copy to the lawyer, legally speaking you will not be telling the truth. At this time, the lawyer owes you nothing. A court has said that much and, until that holding is reversed, that is the pure and absolutely legal truth. Publishing statements to the contrary is simply slander, an actionable tort. Be very careful what you do.

Too long a post. Best of luck, Trudy. I just hope you don't follow Uldis' advice and shoot me twice It would be ineffective, though. As we say in Spanish: "Yerba mala nunca muere."
Regards,

Luis


[Edited at 2004-08-29 22:42]


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