Did you ever get into a fight with a client? Who wouldn’t pay or something similar? It’s a big hassle. Steve Morgan went through it and shares his experience and advice on how SEOs and digital marketers can protect themselves from client disputes and fighting things out in the (England & Wales) civil law courts.
While I’ve been very lucky during my self-employed/freelance career so far to work with some great clients, I had a dark cloud hanging over me during most of 2015, in the form of an old client who refused to pay me. The dispute got pretty nasty and in the end we had to fight it out in court. During the year-long dispute I had a crash-course lesson in the civil law system affecting England & Wales, which was equal parts intriguing, exciting and – of course – terrifying.
Now that the ordeal is over, I wanted to give advice to other freelancers and agency owners (which you can consider passing on to your account managers, business development staff, etc. – basically anyone who deals directly with clients in any way) on the best ways to protect yourself if this happens to you, or even to try and deter it from happening to you in the first place.
Firstly, I’m not a legal professional. I’m an SEO consultant. Please bear in mind that the content of this post is not legal advice – it’s only information based on my own experience. If you take it on-board then it’s up to you, and neither myself nor State of Digital can or will be responsible for whatever happens.
Secondly, I’ll be talking in the context of ‘England & Wales’ civil law, as I’m based in Wales. If you are based in Scotland, Northern Ireland or outside of the UK then please understand that the law in your country may be different and therefore the info in this post may differ in your individual circumstance.*
* Thank you to Andrew Girdwood for pointing this out (that “UK civil law” isn’t really a thing)…
Lastly, while I’m 99.9% sure that there’s no way that anyone could find out who my old client was, I’m not going to delve into the full story for fear of any type of blowback (i.e. libel) – only the basics and what the judge determined in his judgement statement. Let’s just say this: my client refused to pay me for services rendered, so I made a money claim against them, they threatened to counter-claim, we fought it in court and ultimately I won my side of the claim, and the client has since paid me in full plus interest and court fees.
Where SEO gets ‘messy’…
Compared to other industries, SEO in particular is messy when it comes to blame and accusation. Let me demonstrate with a hypothetical:
If a builder builds a kitchen for someone but it’s not the spec/quality that they wanted and may even be dangerous to use, the proof will be in the shoddy workmanship. It’s pretty black-and-white.
But if an SEO builds bad/dodgy/spammy links, while some of them may have a date against them, others may not. You may even be involved with cleaning up a penalty or algorithmic issue – whether it be Penguin, a Manual Action, or perhaps both – and even though you have successfully dealt with the issue in Google’s eyes (e.g. via the disavow and reconsideration request process), you may not be able to remove 100% of the links, and therefore it may look like the bad work still ‘exists’ and may be causing harm. If you can’t prove that bad work came before the start of your contract and/or that you have successfully removed a penalty then it may look as though you had a part in that work – whether you had a hand in it or not.
Wise words from Denzel
I once sat in on a presentation a few years ago from a solicitor who gave a quick 10-minute overview of Civil Law 101. He had a cracking sense of humour and one of his slides has stuck with me ever since. If you’ve ever seen the movie Training Day, you might remember this quote from Denzel Washington’s character:
“It’s not what you know, it’s what you can prove.”
– Alonzo Harris (Denzel Washington), Training Day
At the end of the day, what you say and what you know can only get you so far – but if you can prove what you say and know with evidence then that counts for so much more.
Protecting yourself pre-dispute
The best way to protect yourself from a dispute is to try and avoid one in the first place – or to try and deter the client in taking things further and becoming embroiled in a full-on legal battle. Here are a few suggestions:
When choosing clients, go with your gut
One of the reasons I like freelancing so much is that I can pick and choose my clients – working at an agency you could end up being lumped with some very nasty folk, but when you’re the boss, you can decide who to work with. Even so, one of the first freelance clients that I took on was hard work (in that the person was hard to deal with, not that the work itself was hard), and yet I went ahead with it, despite my gut telling me not to.
Ever since then I’ve told myself to avoid any seemingly ‘tricky’ projects. Unfortunately, I broke my rule and went ahead with this one (the non-paying client, i.e. the inspiration for this post) despite the early warning signs.
If you have doubts, don’t take it on. A better client will come along if you don’t.
Lay strong foundations – make sure everyone knows who’s responsible for what
Make it clear from the start of a project who’s responsible for what aspect of the work – and make sure everyone knows. This means both sides: what are you (the freelancer/agency) doing, and what is the client doing, whether internally or outsourcing separately? Don’t leave anything to interpretation if you can help it. Ideally if you can get this ironed-out in writing then you’re onto a winner: there’s no way anyone can argue with the truth if you say “Bob’s doing x, Joanne’s doing y” and the client responds saying “that sounds good to me.”
Get a good contract
When I first started out as a freelancer, I paid a solicitor friend of mine a few hundred pounds to draft me up a Terms of Service contract to use with my clients. There were delays in getting it done to the point that I actually lost out on a prospective project because the client didn’t want to wait until it was ready. For a year and a half, during the time that I never had any problems, I was resentful towards the experience and considered it a waste of money.
…Funny how as soon as the dispute started, it became the best investment I ever made.
Contracts are obviously a very, very big deal in the eyes of the law. If your client has breached a few of the clauses then it’s not going to help them with their side of the argument if it reaches court.
I would urge you to get something done properly. I know that there are free-to-use templates out there, and while I’m sure that some of them are very good (plus they’re cheap/free, which is a very ‘lean startup’ approach), if there are any ‘holes’ in them then you could get in trouble if you find yourself in a similar situation. You get what you pay for sometimes, after all.
Get everything (EVERYTHING) in writing
A few years ago there was a big fuss on the blogosphere that telephone communication was in every way superior to email: it’s quicker, it’s more personal, etc. etc. I’m a self-confessed phoneaphobe, so I prefer to stick to email whenever I can. And you know what’s good about email? Everything is in writing. To repeat Denzel: “…it’s what you can prove.”
One of the biggest things that helped me during my dispute was the fact that I had everything said by the client in writing, in the form of emails back and forth between us. In fact, one of the most important conversations we had – that was pivotal to the outcome of the case – was conducted over the phone, which was slightly problematic for me as I didn’t have any real ‘proof’ that what we’d discussed even existed. Luckily I had a sort of work-around (a later email reiterating my point), but still… It just goes to show how crucial email can be.
Obviously there will be times when you have meetings and phonecalls with clients, in which case the best thing to do would be to take minutes during the meeting. Heck, this might be a bit much, but maybe even ask if the client is happy to be recorded – especially as most smartphone devices have dictaphone apps these days. Obviously tell the client that you’re doing so for note-taking purposes – not for legal reasons…!
Otherwise, be sure to take the time to send an email after the meeting/call to outline everything that was discussed – and if actions were discussed, make it clear who’s responsible for what. If they reply saying “that all makes sense” then that’s great. If they don’t reply and an issue later comes out relating to that meeting/call, you could potentially present your email as evidence and explain to the court that you never received a reply – while it’s not suggestive that it’s true, it can’t be construed as a falsehood either, as I guess you could argue that they would’ve replied and put things right if they disagreed. [Note: just my opinion, so I don’t know 100% for sure how much ‘weight’ this would have in court – check with a legal professional if you’re unsure.]
Screenshot everything that you can
Obviously not all things can be recorded in writing – so screenshot the rest.
In our industry, that means various screens in Google Analytics, Google Search Console, etc. For GSC in particular, if you’re dealing with Manual Action removal, then consider the following:
- A screenshot of the Manual Action in their GSC account (before removal) – with the date,
- A screenshot of the classic “No manual webspam actions found” statement in their GSC account (after the removal) – with the date,
- A screenshot of your disavow file sitting in their account in the Disavow Tool (if applicable),
- The “we have revoked the Manual Action” message in GSC.
This is especially important for one big reason: if work ends and/or a dispute happens, the client may revoke your access to these types of accounts – and rightly so, as you’re no longer working with them. So be sure to get proof of everything before anything becomes a problem. You don’t want to be in a situation where you want to display proof of the Manual Action’s removal only to find out that you can no longer access their GSC account in order to do so…
If a dispute happens…
Unfortunately, even when you’re armed with this type of information upfront, you may be dealing with a very stubborn or simply ignorant individual (meant in the politest possible way – i.e. someone who simply doesn’t really understand what you were hired to do) who refuses to believe you and therefore refuses to back down. If you get into a proper legal battle then hopefully the following info might be able to help you:
Keep your cool
First and foremost: keep calm and remain professional (don’t worry, I’ll spare you the “Keep Calm” meme)… If you start acting angrily or – worse – name-calling or throwing in personal attacks then you’re only going to aggravate things further and I guess it could be used against you in court too, as it shows bad character on your part. As much as you may want to throttle the individual in question, kill them with kindness instead. This is a lot easier to do via email, as you can craft your response carefully and you’ll also have the benefit of keeping everything in writing (see above).
Get a friend to help you
When you start to receive very serious-looking letters in the post from the courts, it can be very easy to hide them in a drawer or read them in a hurry – and potentially miss important information. This is especially true if you’re self-employed, and in fact it happened to me: I actually missed a deadline because I didn’t read a letter properly, but luckily I was able to proceed nonetheless with the deadline extended.
You may want to involve a friend or coworker to look over any and all documents that you receive – possibly including emails from the client. Ideally rope in someone who is not directly involved with what’s going on and therefore unbiased. For that reason I would advise against getting your family involved to help – they’ll take it as personally as you do and will find it just as stressful.
‘Show your hand’ – tell them your side of the argument
During my dispute, I spoke to a solicitor early on who told me that I should tell the client everything I would do/say if it got as far as court. “But surely then they’ll know my argument!” I argued, to which she replied: “you might as well tell them in advance as you’ll only end up telling them in court anyway, and it might deter them from proceeding.” She had a point.
The legal dramas on TV show the defence/prosecution suddenly revealing something that they had hidden up their sleeve, but truth be told: the courts hate that! If you could have revealed something before it reached court that might’ve stopped it from getting into court in the first place, then that saves everyone a lot of time, money and headaches. An added bonus of doing this: if you have a lot of evidence against them, you can overwhelm them into thinking “screw this, let’s just give up and pay…”
Compile as much evidence as you can
The more evidence, the merrier. I thought that presenting too much evidence would come across as overcompensating, but on the contrary, it looks like you have a strong case with a lot of ammo to back you up. Again, it might overwhelm the other side (to reiterate the point above), plus you don’t want to be in a situation where you don’t include something as evidence and realise in court that it really could’ve helped you.
Get witness statements from everyone relevant to the dispute
In our industry, in addition to your staff (e.g. account managers, etc.), other parties can often be involved in a project, such as web designers. If you enter into a dispute, make sure that you get witness statements from everyone directly involved. Witness statements are written versions of what you (or the individual) would say in court, signed as a sworn statement (the whole “I swear to tell the truth, the whole truth…” etc. bit that we know so well from the movies).
It might be the case that you only have one witness statement, and that’s from you yourself (that was the case with me), but if other individuals are involved, it can help to have them involved. On the one hand, it can help to verify points, and on the other hand, if you don’t include someone pertinent, the immediate question that the judge will think is: why not?
This was a major factor that worked against the client in my case: the dispute was between me and the business owner, but I primarily liaised with his business’ internal web designer – he didn’t get a witness statement from the web designer, and therefore the judge argued that the client’s evidence was not direct from the ‘source.’
Consider involving an (unbiased) expert witness as well
Although we didn’t proceed with this in my case, we had the opportunity to pay for an unbiased expert witness to give testimony and provide a witness statement. In other words, an SEO consultant not already known to me or the client would’ve reviewed everything and given his/her thoughts on the situation. More than that, it could have helped to sway things before we reached court – i.e. if we did this before going to court and the expert witness took my side, the client might’ve considered settling before going to court.
Like I said, we didn’t do this (we considered it but ultimately left it too close to the court date to do it), but you might want to consider it. I believe that the court can reimburse up to £200, so if you can get a consultant costing £200 then you shouldn’t be out-of-pocket – but you may need the court’s permission before proceeding, rather than simply going ahead and doing it.
Consider getting some legal help – even just a one-off helping hand
In the small claims court, the courts actually prefer it if you defend yourself rather than forking out for a solicitor. Sadly, it’s not like a wacky comedy movie where you run between the witness box and the defence table pretending to be the solicitor and witness at the same time… When it comes to small amounts of money (in the grand scheme of things), involving solicitors can get expensive, and it gets pointless as soon as the solicitors costs overshadow the actual original debt amount. For this reason, I believe that it’s rare to reclaim costs, other than court fees (unless the claim is for over £10,000, I think)…
However what I considered doing was to pay for a solicitor to give a few hours of their time reviewing my evidence and witness statement – just to make sure that they were in the right format, that I wasn’t including anything that could’ve done damage to my own argument, etc. – and to answer some of my questions. It cost about 30-40% of the debt amount, which I risked not getting back at all if I lost, but in hindsight it was worth it as some of the feedback that I received made all the difference in the end.
As an aside: if you attend court on your own (like I did) but the opposition arrives with solicitors, some judges will actually show leniency towards you. If you make a mistake, they’ll let it go and be more patient: after all, you’re a layperson of the law. As for the other side, if they make a mistake, they’ll likely have their head bitten off: they should know better, as they’re a professional.
With lots of emails, letters, evidence and witness statements flying around, there can be a lot of paperwork to deal with. I’m primarily a paperless business, but you find that the court will send you a lot of information and forms via post, so be sure to keep everything organised in a folder. I know it’s not very ‘green,’ but you may want to print off any relevant emails, etc. and keep them in a safe place for ease of access, so that you’re not frantically searching through your email archives thinking “now where did s/he say [x]?” (like I did many-a-time during my dispute)…
What do to in court
If unfortunately you get as far as having a hearing date and having a ‘final showdown’ inside a courtroom, the following tidbits of info might help. Some of them are obvious, but they made a difference for me, so I’ve included them nonetheless:
This may seem ridiculously obvious, but astonishingly it’s not a requirement to wear a suit to court – I believe you can wear whatever you choose (within reason, of course)! Obviously appearances can matter, so suit up and dress smart. In one of my two hearings, I wore a full-on suit include a tie (and I hate wearing ties…) while the defendant wore a casual shirt, casual trousers, and… flip-flops. No joke. It was in summer, but still. I don’t know if the judge even noticed, but if he did, you never know – he might’ve drawn a few immediate conclusions…
Keep your cool (part 2)
Again, it can be very easy to get angry and stressed out – especially when you’re face-to-face with your disputer and do not have email to fall back on, as it’s all happening in real time. But try to be cool, calm and composed. If you lose your temper, swear, call the opposition names, etc. then it doesn’t look professional, it hurts your character and you may even get in trouble with the judge…
Prepare for cross-examination
I won my case despite the fact that I didn’t realise that cross-examination (i.e. asking the client questions, and being asked questions by the client’s solicitor) would even happen. I was horribly unprepared and didn’t think that I did this very well – not that it mattered in the end because I won anyway, most likely due to the strength of my evidence vs. the client’s.
Make sure that you take the time to prepare questions to ask. Ask them to clarify inconsistencies, and – better yet – try to catch them out if they contradict themselves or if it’s obvious that they’re lying, in spite of the evidence. Similarly, if you have any ‘gaps’ in your evidence or you fear that you have weak spots in your argument, prepare to explain them as you may get grilled on them.
I actually got told off for this by the judge, haha… I’m a fast talker (I’m passionate on my subject!) but the judge has to make notes, the whole hearing is recorded by a dictaphone, and most importantly, if you’re talking about SEO and disavowing and Manual Actions then the judge may struggle to understand it all – and you need him/her to understand it, even if just a little. It’s easier said than done, but try and talk slowly if you can.
I felt that I didn’t do a good job of this, but the client (in his cross-examination) did. When you’re talking about SEO, compare it to something that the judge may better understand if you can.
Ask a PSU representative to join you
The Personal Support Unit (PSU) is a charity whose volunteers help offer free civil law information to those who are reluctant – or perhaps too poor – to hire a solicitor. You can even ask them to join you in court, so that you’re not alone. I did this, as I was attending alone and I knew that the client would have a solicitor with him, and didn’t want to be overwhelmed or outnumbered. They can’t act for you or represent you, but they’re good for discussing a few points before you enter the courtroom (mostly about civil law etiquette, what to expect, how it works, etc.) and you can ask them for their feedback after you walk out of the courtroom as well.
An important point to remember in situations like these…
When someone owes you money, it can be frustrating – even insulting – if they don’t pay you on time, and even worse if they outright refuse to do so – especially when you know that you’ve done nothing wrong, or if they’re accusing you of doing something wrong when you know hand-on-heart that you haven’t.
But at the end of the day, it’s not about money. It’s about the time that it takes to go through this process. I lost countless hours to this legal battle, time that could’ve been put towards getting more client work. I reckon that if I invested the time in more billable work, I could’ve earned 2-3x what I reclaimed in chasing the debt. And let’s not forget the stress, distractions and sleepless nights that this caused me throughout the course of an entire year…
So if you do decide to proceed with something like this, weigh up the following:
- The size of the debt – The bigger the debt, the more it makes sense to chase it. If it’s only a small one-off job, you might want to forget it. It’s tough… you might’ve done the work already, and even done really good work – but ultimately it might not be worth it if it’s only a small amount.
- The risk of NOT fighting it – In my case, if I let the debt go and then the client later made a claim against me, the first thing the judge would wonder is why I let it go: is it because I couldn’t be bothered to chase the debt, or because I did something dodgy…? In my case, I felt like I had no choice but to fight it right to the bitter end, as I feared that not doing so could have bigger repercussions later on down the line.
- The Personal Support Unit (PSU) – As mentioned above, they can offer advice on how the courts work, how to fill out court forms, etc. Very handy if you want to represent yourself rather than getting a solicitor involved, or if you just want a basic understanding of the legal system. And especially as the Government’s Justice website is a legalese nightmare (here’s an example)…
- Witness statements – Here’s a handy overview of them, plus a link that contains an example. They should be chronological, telling your side of the story and your version of events, but only telling facts, not opinion. They should also reference the evidence documents that you have provided as-and-when they become applicable to the points that you’re making (e.g. “The client signed the contract on [date] – I attach marked SPM01”).
- The Good Wife – Seriously, it’s good. Despite being a US show (and therefore focusing on US law), it got me thinking about courtroom situations, what’s important to get across in your argument, how judges come to their decisions, and so on. Besides… Alan Cumming’s in it, and he’s hilarious.
Oh and if any of you have civil law solicitors as clients…
Decent information about the civil law system is sparse online (at least it is in the context of England & Wales) – I really struggled to find decent content on various topics to do with civil law and small claims. Whatever is out there is either overly legalese and complicated, doesn’t go into enough detail, or clearly hasn’t been optimised well enough in order to be found…!
If any of you have solicitors as clients, and you’re considering their content strategy, I recommend creating some blog posts about witness statements, compiling evidence, courtroom etiquette, etc. etc. – I recommend doing some keyword research around those areas and seeing what pops up. I reckon that there’s a traffic-driving goldmine waiting to be mined.
[Image credits – Blind Justice: Marc Treble; theGOODSEO: a nod to The Good Wife (a big thanks to Rachel at Welsh ICE for the photoshop job – well done if you got the reference); Training Day promo image: IMDb; fountain pen: Dennis van Zuijlekom; ringbinder: Stephen Train; County Court: Alwyn Ladell]