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From: firstname.lastname@example.org (klmok)
Subject: Re: Contract Dispute questions.
References: <email@example.com> <firstname.lastname@example.org>
X-Newsreader: Forte Free Agent 1.21/32.243
Date: Wed, 20 Nov 2002 18:03:16 GMT
NNTP-Posting-Date: Wed, 20 Nov 2002 11:03:16 MST
Organization: Shaw Residential Internet
On Wed, 20 Nov 2002 09:58:48 +0000 (GMT), Tony Williams
>In article <email@example.com>,
> klmok wrote:
>> I am a tech not an engineer and no degree engineer friend wants to get
>> involved in the dispute.
> Think about that statement. Consider why? no
> degree engineer wants to get involved, even
> friends. What do they know that you don't?
On principle. Its obvious I had a vey bad contract and an even worse
contractor. These new friends didn't even take a look at the contract
or discuss the technical issues. Too small a potato. It will take too
much of their time and they don't want to be called as an expert
witness. The things I hear about the contractor from the electrical
engineering community its a wonder the contractor is still in
business. He will never get any major project from high tech firms
but then there are probably lots of small fry outsiders like me who
won't know any better and the projects I saw in his office are pretty
straight forward hardware stuff. Small fries cannot talk to big
contractors whose minimum jobs start at several hundred thousand
dollars a pop.
This is a very small select community (high tech entrepreuners and
engineers) where everyone knows everyone eventually and I have already
made many contacts I would never have been able to make before. My
project is my entry into this community and I have been accepted and
treated as one of them. I don't see my contractor at any of the
> Is it perhaps that the Rights and Wrongs of the
> sorry saga are not as clear-cut as you think?
I'll have to use the techical arguments with caution.
After I served notice to sue he requested mediation and we already
went through that (Oct 22). He wanted to disengage leaving me empty
handed, out of $20K and two years of frustration. Their threat was
the countersuit. I pointed out that the contract is written such that
if he demands payment I have to pay it but he is also obliged to work
on Phase 2, after that another payment which triggers phase 3 and to
final completion. This was what I wanted to happen all along. Had he
done that in the first place there would have been no lawsuit.
That caught him and his lawyer by surprise. The contractor took
along his lawyer to mediation as English is not his first language .
But mostly to intimidate me. Even threatened me that if I lose he'll
garnish my wages and force me to dispose of my assets. Hah. The
contract was with my incorporated company - no income and lots of
investor loans from me. I have personal funds anyway.
It was more of a discovery meeting. Anything goes and the rules of
evidence non existent. I wasn't going to provide him my full arguments
that I could use later in court. I also wanted to discover his
arguments. I would have been happy to walk away with the $7500 limit
then but knowing the contractor didn't think that would happen.
1. The contractor didn't deny that the breadbord prototype he made had
many unresolved problems. I have more compelling technical arguments
but that would reveal my patent claims (same project by another
contractor) at this point of time.
2. He asserted that the 4 month's was only an estimate and 18 month's
was still within his (right to determine) time frame. At 14 months I
had sought my patent lawyer's opinion on what to do for non
performance. He didn't even look at the contract (too small a sum to
go to civil court for and he specialized as a patent lawyer so as to
get out of the court appearances) but dictated (avoids padding his
legal fee and doesn't use his letterhead) the wording for me to serve
a Breach of Contract as the delay was clearly a breach. The hope was
to prompt the contractor to live up to his contract and finish the
project promptly. I would pay the full $50K on schedule and have a
finished product in hand. Else I am out of luck. A civil claims
court costs big $$$ to go after $20K which I might not recover in full
or settle for small damages in a small claims court.
3. The contractor had never at anytime declared Phase 1 had been
accomplished at which time I would be immediately be liable to pay
another $10K to proceed onto Phase 2. He wrote the contract in such a
way that I had no escape clause. His claim for additional payments
was only after I sued. He claimed work on Phase 2 and Phase 3 had
been undertaken, relying on the lack of technical knowledge of his
lawyer and the mediators to make this claim. My original post stated
my reasons why this could not be. Phase 2 and 3 would have
incorporated SMD components and PCBs which was never attempted. I
didn't make this counter argument at mediation because I had not
thought of it then. In retrospect this will be a key technical
argument and have more impact in court.
4. When I served the Breach of Contract in mid November 2001 with my
witness present he refused to accept that and said some pretty
boastful things about how I was careless in reading the contract (ie
he held all the cards.) But as a goodwill gesture he will undertake
to complete Phase 1 and provide a fully functional product by the end
of January this year. We exchanged several emails drafts on what this
revised agreement is. Included was a clause that I would sign off on
the project once a fully functional prototype was accomplished. I
wasn't going to sign anything beforehand considering how he screwed me
on the first one. The revised agreement serves to acknowledge that he
would complete Phase 1 to a fully functional product. The hand over
date slipped from end Jan 2002 into end of Feb and so on until early
June. The problems were never solved and turned out to be worse than
what his engineers had identified. It was obvious that he had already
put too much time and effort into the project that had fundamental
design faults he never addressed from the beginning of the project.
He wasn't going to work on it any more and neither was I willing to
let this drag on ..
> ITSM that if you intend to proceed to legals,
> then you should first get a paid-for independant
> professional review of the whole project.
By court date I should have a fully working pre-manufacture copy of
what the whole project is from another contractor. Its exactly the
same project I gave to the first contractor sans the LCD part. The
contractor had threatened that the LCD implementation was his idea and
he had co-inventor rights, as obvious as this feature is. Fortunately
the LCD display can be substituted by an on-screen display in my
current project implementation..
> someone who is also prepared to be an Expert
> Witness if it comes to legals.... because you
> (with your admitted lack of technical expertise)
> are on a hiding to nothing if you try and argue
> technicals, even in a small claims court.
> Abide by his advice.... it may save you money.
I have already done that. Used a second lawyer. He wasn't
technically knowledgeable and my benefit was running my arguments by
him to check if I made any bad arguments in procedure.
The small claims court has the advantage that I wouldn't need a lawyer
to represent me. The contractor does because English is not his first
language. The judge maintains the rules sof evidence so neither him
nor his lawyer can make wild assertions. The small claim max just
increased to $25K and this makes my claim even better. Will have to
refile my suit though.
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