Michael sits down with wedding law attorney Rob Schenk to discuss the most relevant legal topics regarding wedding videography and photography. Rob answers questions regarding contracts, insurance, deposits, litigation, coronavirus and the number one legal mistake that wedding professionals make. This is an episode every wedding videographer and photographer needs to hear!
Be sure to check out Rob's podcast, The Wedding Industry Law Podcast, and find Rob on Instagram @weddinglawyer. Check out the Youtube channel at Wedding Industry Law, or visit the website directly at weddingindustrylaw.com.
Looking for the ultimate wedding videography contract that includes a force majeure clause? Here it is.
This episode is brought to you in part by Photographers With Wide Brim Hats.
Make sure your legal game is strong with the Wedding Videography School Contract. Enter the password podcast for access.
You can find us on Instagram!
@weddingvideographyschool
@aflatis
@filmsaboutlove
@michaelleering
Michael sits down with wedding law attorney Rob Schenk to discuss the most relevant legal topics regarding wedding videography and photography. Rob answers questions regarding contracts, insurance, deposits, litigation, coronavirus and the number one legal mistake that wedding professionals make. This is an episode every wedding videographer and photographer needs to hear!
Be sure to check out Rob's podcast, The Wedding Industry Law Podcast, and find Rob on Instagram @weddinglawyer. Check out the Youtube channel at Wedding Industry Law, or visit the website directly at weddingindustrylaw.com.
Looking for the ultimate wedding videography contract that includes a force majeure clause? Here it is.
This episode is brought to you in part by Photographers With Wide Brim Hats.
Make sure your legal game is strong with the Wedding Videography School Contract. Enter the password podcast for access.
You can find us on Instagram!
@weddingvideographyschool
@aflatis
@filmsaboutlove
@michaelleering
Michael:
Hey, guys, Michael here with Wedding Videography School. Hope you're having a great week, I know I am. In this bonus episode, I sit down with Rob Schenk, Wedding Industry Law Attorney. You can find him on Instagram @weddinglawyer. And we discuss the most pertinent legal topics related to wedding videography and photography including insurance, business entity structure, contract language, keeping deposits, litigation, and we even discuss coronavirus and how that's affecting contracts that are already in place.
Michael:
I hope you guys are ready for an incredibly valuable episode. Before we get into the show, please do me a favor. If you find this episode useful, if Rob answers a question that you have or provide something of value in this episode to you, please just take a minute to subscribe to Rob's podcast, the Wedding Industry Law Podcast. Rate and review the show for him and follow him on Instagram. Again, that's @weddinglawyer. That's all we ask.
Michael:
I subscribed to his show and left him a review already on iTunes because I was blown away by the amount of information that Rob is giving away for free. This is information that you typically pay for by the dreaded billable hour. And I know because I already have paid for this information. But Rob is so generous and providing that info to you guys for free. So please just take a minute or so of your time to show him some love. And with that, let's get into today's episode with Rob. Hey Rob, thanks for coming on the show today. I really appreciate it.
Rob Schenk:
Great. Thanks for having me.
Michael:
Yeah. So why don't we just get started. I've got a list of questions here, but first, why don't you tell me a little bit about yourself, how you got into the wedding industry law area, and how do I know that you're a real lawyer and not just playing one on Instagram?
Rob Schenk:
Oh, that's awesome. Actually, I haven't been asked that yet. So that's great. No, I am an attorney, I'm licensed to practice law in Georgia, Florida and New York, Tennessee and California. And a good portion of my practice is dedicated to representing wedding industry professionals in contract matters. So client contracts, vendor contracts, that kind of stuff. And to a lesser extent dispute resolution between wedding professionals and clients and couples. I've been doing that for, I mean, close to 10 years.
Rob Schenk:
I got into it because I dated a wedding photographer and reviewed her contract and then learned wedding photography law and the ins and outs of wedding photography and how it relates to law and contracts, and then expanded from there and began representing venues, wedding videographers, wherever the case may be. And just that grew into wedding industry law, which is a blog and now a podcast. And the rest is history, I guess. And to verify who I am for reals, I don't know, come to my house, say hi. We're going to [inaudible 00:03:08]. Well, at least not now. Maybe in a few months.
Michael:
Fantastic. Well, I just want to jump into these questions. We got some questions that were submitted by people on Instagram. I know Adam Bradley who usually hosts the podcast with me couldn't be here today. But he had a couple of questions to throw into the mix and I've got some questions as well. So first question, what is the number one mistake that you see wedding vendors make as far as when it comes to the legal side of things?
Rob Schenk:
Well, obviously the number one mistake that wedding professionals make is either not having a contract or not having a contract that fits their needs, that they stole from the internet or got from their neighbor or whatever, or if you ask them to read from it, they wouldn't understand any of the language in it. So first of all, not having a contract is dangerous because at least, at the end of the day, if you have a contract, you don't have to rely on your memories, you don't have to rely on a series of back and forth emails or texts to determine what your obligations are. So even from just a 40,000 foot view, having a contract at all... And you'd be surprised at how many people do not operate with a contract.
Rob Schenk:
But with regard to the latter, having a contract that you can't understand or that you stole from your cousins, brothers, girlfriends, nephew, from Baskin-Robbins, every industry is different. Wedding videography has different sets of risks and legal ramifications that are different than a wedding florist or a planner or a coordinator. And even between planners and coordinators, that can be different in terms of the obligations and the legal implications. So having something that you stole from somebody or that you don't understand might lead you exposed. Even though that's a dumb thing to say like, "Hey, you don't have a contract. You can't read your contract." That's still a big problem. It's still prolific. It's like a wedding professional not having a website. Based on wedding professional, someone in pretzel still don't have websites. Right? That's the number one thing.
Michael:
Got you. Okay. So I think I ran into this early on when I was guilty of just finding some free or $20 contract online that I could manipulate myself or whatever. I went into it thinking, "Okay, maybe my contract's not that great, but I have insurance." Right? Which looking back is kind of goofy, but I'm curious, is insurance going to protect me from litigation? I think that question pops up a lot for people who aren't familiar with the law.
Rob Schenk:
That's an excellent question. There are different types of insurance that could cover you depending on the type of issue that has arisen. So when we think of insurance, at least when I think of insurance, typically, what you're thinking about is what's called liability insurance. That's if you drop your camera on somebody's toe, and it causes them physical injury. I recommend that every... And your audience is mostly wedding videographers, right? Like cinematographers?
Michael:
Yeah, videographers and some photographers as well.
Rob Schenk:
Okay, great. So dropping your camera on somebody's foot or whatever. And I recommend that all of you guys and ladies, guys as unisex, have some type of general liability insurance. And that will cover you in the incident in which you hurt somebody. And in some instances that covers if you drop the camera and break mothers vase, right? So some damages to stuff. So damages to people and stuff, that's typically general liability insurance, and I would recommend you have that because we can get into professional liability here in a second. But I feel like if somebody sues you because you didn't do a good job, okay, fair enough, we can talk about those damages here in a second. But if somebody sues you because they have to have four surgeries because they busted their knee because you dropped something or you're negligent, that is a business inter, if you're liable for that. So liability insurance, there's different coverages, you can get 500,000 to 1 million. It doesn't matter. You need to have at least some coverage, right? So that's liability insurance.
Rob Schenk:
Then there's professional insurance that would protect you as a business owner, as a videographer in terms of the job that you do. It's not as common with videographers, it's not as common with people outside of the quote, unquote professional occupations like architects, attorneys, doctors, professional malpractice, right? Like you see on TV and stuff like, "Hey, this doctor left a set of scalpels inside somebody." Right? That's what malpractice insurance covers. You can have that, I mean I don't think it's as expensive, it's not very expensive and it can cover you for that. Then there's this insurance like, "I mean, is it recommended that you have that?" Okay, cool, get it. Right? I would still say if you're going to do anything, pick one or the other, I would pick liability insurance.
Rob Schenk:
And then there's insurance to protect your own stuff in case you drop your camera and you don't want to have to spend 10 grand on another camera, there's that type of insurance. And I'll leave that up you as the wedding professional to determine whether or not you want to have that. From a broader standpoint, that's the insurance and that's the types of insurance there are, and I would love you make your own decision on what kinds you want. The other idea to protect yourself and particularly to protect your stuff, your personal assets is to have some type of business entity. So it's possible wedding videographers out there that you picked up a camera and you get real good and maybe you did your cousin's wedding, then you did your aunt's wedding or whatever. And said, "Man, I'm rocking a rolling." And you started from there, right? Without going through the steps of incorporation or organizing some type of business entity.
Rob Schenk:
The reason why that is important or possibly recommended is that when you're just John Doe or Jane Doe videographer, and you go out there and you start making money, which is awesome, good for you, there is really no separation between you and your business. You're literally in your business. So if you drop that camera on somebody's foot, if you get sued for breach of contract because you got drunk and didn't show up or whatever the case may be, whatever liabilities you as the videographer has, you personally are going to have to because there's no separation between you and the business.
Rob Schenk:
If somebody sues you, they're going to get your stuff, like your Beanie Baby collection, you know what I'm saying? Your PlayStation 4, all that is open for business. So if you have some type of legal entity that you have formed correctly and you're doing all the right steps, that along with insurance is a shield, right? So like an LLC, you're basically telling the world, "I John Doe wedding videographer, do something in which somebody can come after me." You are limited to the assets of the LLC. You're limited to the assets of the corporation, and you can't come after my own personal stuff. I always talk... Not always. A lot of times I talk about insurance and business formation hand in hand, it's the same concept. You want to try to have as much protection as you can for you personally and your stuff.
Michael:
Got you. And I know there's a lot of people operating as sole proprietors out there. If someone is a sole proprietor, is there anything they can put in their contract that would help them? Or is really the number one way to protect yourself or at least protect your personal property in a dispute? Is that really just...? Does that lie within LLC or an S corp or some sort of thing like that?
Rob Schenk:
Not necessarily. I mean I'm not saying that if you're a sole proprietor, you're wrong. I'm just saying that if you're a sole proprietor, I truly hope for you that you have liability insurance out the wazoo. But the problem is... And I don't have anecdotal, I don't have any data for you, but if there's an instance in which something happens and your insurance company is like, "You know what? We're not covering that. Because you were drunk or maybe did something." Then you're right back to having nothing. Right? Anyway, so yes. If you're a sole proprietor out there, then have insurance and again I would... It's so easy in every state now. I'm not saying you form a corporation in Delaware. You know what I mean? You see that sometimes. Forming an LLC in your own state typically is pretty cheap and it's pretty easy, it's designed that way.
Rob Schenk:
Corporations as an idea, is a legal fiction where we allow owners of businesses to separate their personal Beanie Baby collections from the debts of the company. Is an old concept, and it's been around for hundreds of years, right? You learn in a history class what was the Dutch West Indies or whatever from Netherlands is the first corporations, but 100 year old. But it's hard. You got to have stockholder meetings, you got to have a board, you know what I'm saying? It's like Wall Street stuff. And so at some point, 20 or 30 years ago, we said, "Okay, man, we want to incentivize people to go out and form businesses, but separate their stuff from the debts of the company. So let's make a new thing that's easier but accomplish the same thing." And that's the LLC.
Rob Schenk:
And that's why I'm saying that don't worry about S corp, C corp board of directors meetings, hostile takeovers, an LLC can be as simple as going on your secretary state website of your state, giving them 50 bucks and doing the things necessary, and you're going to be likely covered. So that's a roundabout way of answering that question, I guess, I hope.
Michael:
We're taking a journey here. But what would you say is the most common kind of litigation that you see among wedding vendors in between them and their clients, if you really see any at all?
Rob Schenk:
I would say, and again, this is not scientific, I don't want to get all the scientific, this is my anecdotal understanding, 99.9% of all legal disputes between a wedding professional and a client have to do with money. So you got that 99.9%. Probably, 95% of that 99% is what happens to money if the event is canceled prior to the event. Okay? Who is entitled to what if that happens? And that drives my philosophy about drafting contracts for wedding videographers. If you have the understanding that an overwhelming likelihood of any disputes that you have are going to be about money, then you need to make sure that your contract deals with what happens to money when and why.
Rob Schenk:
That's almost the most important thing. And the reason is, because typically if something goes awry and the event isn't going to go forward and you have no money, you're never going to get it. If you have some money, just be happy because you're never going to be able to chase them down for more, because the process of litigation, the process of suing somebody typically outweighs the benefits of getting the money at the end of the day. It's like throwing good money after bad, is how it works. So if you can structure your contract in such a way that you are retaining money that doesn't go back to the client if the event does not go forward, that should be the number one driver, the number one primary purpose of that document.
Michael:
Would you say that it's easier for a client to go after a vendor versus the other way around?
Rob Schenk:
Well, in the battle of public opinion, I think it's way easier for our clients to destroy us online. A mission accomplished. Right? But in terms of litigation, no, I mean depending on what your contract is, you can make your contract extremely favorable to you as the wedding professional in many respects. You can make venue in your hometown, which depending on what state you're in, depending on where the event's going to be at and depending on where your clients are, you might not be able to ordinarily bring your claim in your own backyard, but you can make a contract so make it that way. Or you can make your contract... And I had a podcast episode about this, making the client pay your attorney's fees if you have to go after them.
Rob Schenk:
There's ways that you can protect yourself and make it more beneficial for you. If you have to litigate, make it a winner-take-all if you litigate, you can definitely do that. But I guess to reiterate, at the end of the day, you want to try to avoid litigation at all costs. You want to be able to keep money if things go awry without having to go through the rigor moreau of suing somebody.
Michael:
And I think that probably the very next question everybody listening has is, well, how do I do that? What is that thing that I put in my contract that allows me to for example, keep a deposit if my client cancels or postpones to a date that I can't film their wedding or shoot their wedding or whatever? Is there anything in particular? And I don't know if we're getting into force majeure and that kind of thing, but what are the kinds of things that you look for in a solid contract?
Rob Schenk:
The concept of keeping money that's in your hand or being entitled to money that is not in your hand [inaudible 00:18:23]. So either the concept of the money in your hand that you take from the client that doesn't go back to them or being entitled to money if they cancel. In the lieu of litigation, that is typically from state to state called liquidated damages. Liquidated being a set amount, damages being money. So a set amount of money that's going to set you straight if the event is canceled. So understanding that that's the process so that you and the client are agreeing upfront that if the client cancels the event for reasons within their control... And we'll get to the force majeure in a second because this is outside of that.
Rob Schenk:
But it's you and the client agreeing upfront, if you cancel, I mean either you're going to... there's many ways you can do this, but typically it's, "I keep this money that you gave me already." But sometimes it can be, "You have to owe me more if you cancel X amount." But like I said, you'll never get it. You'll never get that money. Even though the contract says you're entitled to it, you'll never get it because like, "Sorry, Charlie, come get me." Right. So your question is, how do we structure it? I recommend structuring these contracts in such a way that it allows you to keep money in hand. So if that means three payments, one at the signing, one at some interval, and then one before the event so that you're paid up prior to the event, that protects you the best. If they cancel during the duration of the event, that's the best.
Rob Schenk:
Having money and then making them come after you is the optimal way to construct your liquidated damages clause in my opinion. If there's another way to do it better, I haven't seen it because we run on the understanding that, if the money's not in your hand, you'll never get it.
Michael:
I know I did bring up force majeure, I'd love for you to explain that concept to people who maybe aren't familiar with it.
Rob Schenk:
Sure. So force majeure is a contractual provision that is in many people's contracts. It's probably in your contract. Every force majeure clause is different from the next. It's not as though there is some type of one broad force majeure clause. However, the idea of the force majeure clause is to say that the parties will not sue one another for breach of contract if an event that is beyond the reasonable control of the parties makes it impossible to go forward with the obligation under the contract. In this instance, the event. So it is a contract provision by which the client cannot make the wedding videographer show up at an event in which the wedding videographer due to laws, would be arrested because they're violating a shelter-in-place rule.
Rob Schenk:
Now, every state... And that's the idea. You can't be sued because you didn't go to an event in which you would be arrested or you didn't go to event because the venue has been destroyed. Something that makes it impossible to get there, you can't sue each other for it. Now, there are many attorneys that... Let me just say this, force majeure clauses are interpreted differently depending on what state you're in. But like I said, the typical idea is that there's something that's beyond the ability of the people to foresee that hinders you from being able to do it. Okay. Now, and again, this is where the attorneys will probably be fighting this out. Some states are like, "Well, okay, it was the pandemic, an actual force majeure event, blah, blah, blah."
Rob Schenk:
I am telling you, I'm not saying that I'm going to bet my house, but this is an instance in which it's not just the pandemic, because you can say that, "Okay, well, each one and anyone was a in pandemic for sure. But that didn't prevent anybody from going anywhere because they wouldn't be arrested for showing up at a place that has shelter in place." So my argument is that, even though your contract might not say pandemic, and again you get an attorney to review your contract, but I would be willing to bet you that most trial judges are going to say that a pandemic along with a proclamation of shelter-in-place triggers your force majeure clause, which would then discharge your duty to show up at that event, if that makes sense. That's the general idea of a force majeure clause. It's like, "Okay, well, then Rob, who cares? Okay, I don't have to show up." What are our duties to one another now? That's the Rob.
Rob Schenk:
From a general standpoint, if a force majeure clause renders an event unable to go forward, it's a hard thing under the law because that's a perspective obligation. It's an obligation that is different than if you and I are sitting there at the Nissan car lot and you have your 10 grand in your hand and I've got the Nissan truck that you want to buy, and then an asteroid destroys the truck. It's like, "Okay, well, I can't sell you this truck anymore." And you're like, "No, I want you to, I don't know, fix it and paint it and get..." No, a force mejeure event has rendered this... I'm not going to be forced to sell you this truck. Right? This is different than something in the future. We're talking about an event in the future. So what are your obligations? It depends on what your contract says. Okay.
Rob Schenk:
Some people's force majeure clauses, at least the ones that I've written, make it obligatory for the parties to reschedule the event at a later time. Meaning that you have to make a good faith effort to reschedule the event at a time when the force majeure event is no longer an issue. And if the parties don't do that, they're in breach. So, "Okay, Well, Rob, what about the people that don't have that?" Again, it depends on what your contract says. Some force majeure clauses will say something along the lines of, "If the force majeure event happens, we're discharged from our duties, we keep money or not keep money." Okay, good for you if that's what it says, because then you don't need me.
Rob Schenk:
Most of the force majeure clauses will just say, if an act of God happens, then the parties are discharged from their obligations of the contract. In those instances, are you allowed to keep money? Do you have to give money back? Are you obligated to reschedule? We don't know the answers to these. Typically, in the history of force majeure events, with all things being equal, everybody goes back to a position that they would have been in before the contract. So the client gets their money back, and the wedding professional doesn't go and fulfill the obligations of the contract. Well, that's not fair to the wedding professionals that are out of pocket. So in some jurisdictions, you're allowed to basically retain whatever you would be out of pocket for. Okay? Some jurisdictions, maybe you can get a little bit more.
Rob Schenk:
Almost no jurisdictions are going to allow you to keep full contract value, because that's not fair to the client, because they're not in a position they were in before the contract was signed. So at the end of the day, if force majeure event happens, I think the pandemic will be one, even if your contract doesn't say pandemic in it. But unless your contract talks about where the money goes, it's in your best interest to reschedule the event as best you can. And if you can't, use as much honey and as much love as you can to keep as much of that contract value as you can before the client goes their separate ways.
Michael:
Man, I feel like I've just learned a ton in a very short amount of time.
Rob Schenk:
Hopefully, it's understandable. I know this stuff can be super dry and boring, but it's a hard time right now. I mean because people want answers and the problem is I can't tell you specifically what's going to happen with your particular client like, "Rob, my client is not being reasonable. They want to reschedule for November or they want to schedule for February. They're saying that... Can I charge them extra fees, Rob?" There is no law that says that none of that can happen. It's really... The only people that are going to decide what your obligations are in your specific situation with your specific client, would be a judge or a jury after a lawsuit is filed. That's the only... Otherwise, you better bargain, you better negotiate. Your life's depended on them.
Michael:
And so if we find ourselves... And I know I have found myself in this situation already where a client wants to postpone the wedding till next year or just choose a different date and reschedule, what do I need to do in order to do that? Do I just issue a new contract with a different date and then have them sign that? Are there any particular steps? Do I need to do anything with the old contract? How does that work?
Rob Schenk:
There's many ways that you can skin a cat. Like, "Rob, should we sign a new contract?" Yeah, you can do that. That's no problem. You can also just basically have an agenda or an amendment to the original contract where the dates change, the new services that you're doing and any additional charges, yada, yada, yada, either one of those is fine. What I would recommend is if you are in the lucky position, which I mean hopefully all of your clients are like, "Cool, let's just postpone to another day and we'll just keep moving forward." Awesome. Good for you. That's the way you want to do it. There's a couple of things that you look out for. Number one, I don't know if this is going to be the case with wedding videographers, but if there's any type of service or product that is different because the date has changed, you need to make sure that's in the writing that you and the client are signing, whether it's a new contract or an amendment.
Rob Schenk:
And what I mean by that is if you were... And I off the top of my head I can't think of it for wedding videography, but if you're a wedding florist, if you have a June wedding that you're postponing to November of next year, the charges for the same type of flowers are different because it's not in season anymore. So whatever charges would come along with the new date, make sure that's in there. Whatever services might be different because maybe... And again, for a wedding videographer, I can't think of off the top of my head.
Michael:
Well, let me give you an example. Let's say I've booked a wedding four hours away from where I live, I booked a hotel room for that weekend. And let's just say it was a nonrefundable hotel room. And even with the coronavirus stuff going on, I can't get my money back from that. Right? So now maybe I'm out $500 from the deposit that was paid to me. Am I able to charge the client an additional $500 for the next time that I go up? Right? I think that's probably something that we would encounter.
Rob Schenk:
Got you. Okay. So in other words, can I...? Yes, if your issue is that you need to rebook another hotel room, as long as the client agree, you and the client agree to whatever you want, I mean that's up to you and your ability to finagle. Are they legally obligated to? No. Like I said before, the force majeure lane that we live in, it's going to come down to who the best customer service people are, are going to survive because that's what it is. If you go to the client and go, "Hey, will you pay an extra $500 because I lost my $500 in that hotel?" And they go, "No way. I'm not doing that or I'm out of here." Then you need to be able to confront them with that somehow and get the best you can from that. Because sometimes they'll be like, "Yeah, I completely understand, tack on that extra $500. No problem." Right? That's awesome.
Rob Schenk:
But if it's going, "Okay, well, maybe will you pay 50% of that?" "Okay, fine." And you can negotiate your way through that. Again, like I said, are they legally obligated or do they have to? Who knows? I don't have an answer for that. It depends on your contract, depends on your state, but it's going to depend on how good... how much of a sweet talker you are. But I guess my point to this is, make sure that's in the contract, because people's... I can't remember what I ate for breakfast today. So a year from now like, "Oh, yeah, remember you were going to pay for my hotel room or whatever." "No, I never said that." Make sure that's in there. So whatever additional charges, and that's a good example if you're recharging them for travel module, make sure that's in there.
Rob Schenk:
The next main thing is we're not out of the woods with this. Okay? So we will not be out of the woods until everybody has that dot on their arm that shows they've got inoculated. Okay. And that could be a long time from now. I mean that could be a year from now. So understanding that infectious disease and that COVID-19 is not going away until the day that everybody is inoculated, this could happen again. So, your amendment or your new contract needs to have a force majeure clause. Now, is a chance to have a force majeure clause that says number one, here's what a pandemic situation is that would trigger a force majeure event. So don't leave it to the trial judge. You say, if a force majeure event occurs, if due to disease or COVID-19, A, B, C. So for example, if the local government has shelter-in-place.
Rob Schenk:
I'm starting to see now because of phasing, it might be beneficial for the couple if... Okay, well, if we can have a wedding or an event that's 100 people or more, but everybody's got to be six feet apart, no one can dance with each other and everybody's going have PPE, that's a force majeure event. Because the idea of the wedding is frustrated to the point you might as well not even do it. So you can define that as your force majeure triggering event. There's many ways you can do it, but as long as it's in there. So defining what pandemic is in your force majeure clause. Okay?
Rob Schenk:
The next thing is obligating the couple in case there is another infectious disease or force majeure event that you're obligating one another to do the best you can to reschedule. Because like I said, at least the ones that I did have it, but not all force majeure clauses have that obligation in them. Okay? That's important too. The next thing is if you cannot reschedule, even though you've made it obligatory. If the client's like, "You know what? At this, we're just going to go to the justice of the peace."
Rob Schenk:
If they don't want to reschedule or they reschedule for date that you're not available, they assume the risk of loss on that. So in other words, if a force majeure event happens, they don't want to... or you cannot through reasonable efforts reschedule, you keep all the money that you've been paid already. So there's three things in the force majeure clause you need to have on top of other things, but the main ones, going forward with your amendment or your new contract, defining what pandemic is and when it's triggered. Then obligating the parties to reschedule, and then what happens when you can't reschedule, the client assumes the risk.
Michael:
And let me ask you this, because I know there's people out there who are operating off of what I call these $20 contracts that they found online. If the contract doesn't say where the money goes in the event of a cancellation or a postponement where, let's say, I'm not available to shoot the wedding, where does the money end up going? If the contract doesn't stipulate, "Hey, I get to keep the money." Do people who have a client who's postponed or you can't do the wedding for whatever reason, do you recommend that that money goes back to the client?
Rob Schenk:
Well, here's a couple of things with this. There's a lot of confusion with like, "Well, Rob, I've got a nonrefundable deposit." My argument is that if you were to go to court with that, there is law at least in my experience, and some attorneys might disagree, but there is law in my experience that would support the fact that your nonrefundable deposit is for times in which the event is canceled within the control of the client. That nonrefundable deposit you took is separate and apart from what happens to money in case of a force majeure event. So that's number one. Number two, is like I said, typically, the parties go back to square one if a force mature event happens. That's the general case law, although every state is different.
Rob Schenk:
That means that in some states, you would keep whatever you're out of pocket for, in some states you would give it all back, in some States you might be able to keep a little bit more in terms of like, if you were a wedding videographer and even though you might not have gone out of pocket for your hotel or your lodging or travel, or you might not have got out of pocket for, I don't know, tapes, you know what I'm saying? Whatever the case may be, but maybe you thought about angles or maybe you downloaded software, or maybe you've put thinking in your mind behind this event, "Can I get paid for that?" Maybe in some states you could. Okay? But the ultimate decider on how much you can do, in my opinion, is going to be a trial judge or jury down the road. So your best option is to argue as best you can to be able to keep as much money as you can for the clients that don't want to reschedule.
Rob Schenk:
But unless they... Hopefully, in these situations you have a certain amount out of the deposit, you have a certain amount of money. And so at least you're not in a situation where it's like, "Can I please have some money?" You're in the position where you're like, "Okay, well, this is what I think is fair, and if you don't think it's fair, sue me or whatever. But that's where I'm at. I think in my research and my experience with this, that's how that's going shake down."
Michael:
Why is it that we have all of these laws? But whenever you ask an attorney about, "Well, hey, here's the situation, will I win or will I lose?" A lot of the times they say, "Well, it depends." We've got all these laws, but it feels like they're always just open to interpretation.
Rob Schenk:
Well, let me let you know a little secret. Oftentimes when an attorney says it depends is because we are not allowed to give legal advice to people. Well, let me just say this, if we answer your question specifically, that's providing legal advice. And if you go out and you act on that and you get messed up, you can sue us for that. Right? So there's the general idea that the state bar of whatever you're in, like State Bar of Georgia doesn't want me going out there and just being blanketly saying like, "Hey, whatever, here's your specific thing that you should do to somebody at a party or somebody at a podcast." And that's the reason why is because if you rely on it and it messes you up, I'm smoked. So that's number one why people say it depends.
Rob Schenk:
The second thing is is like this, and I'd literally have a podcast dedicated to why people say it depends. And my two cents on this is that I can give you a 40,000 foot view. Okay? If you give me variable A, B, and C, I can tell you, you have a greater likelihood of this happening as a result of A, B and C, this is probably going to happen, right? But if you have variable Z that you didn't tell me about or I didn't ask you about, that change the result like that. Okay? So until you and I sit down and I see variables A-Z, that's when I can tell you, I think that you have an 86% chance of succeeding on this particular issue in a court of law based on this.
Rob Schenk:
But let me just say this, dude, I mean I try cases. And there are times when a trial judge or a jury renders a decision that you're scratching your head, you think something slammed. And even a lot of times the judge will let you talk to jurors after the trial, and you'll be like, "Hey, what did you think about this argument? How come you didn't consider this?" And they'll ask me a question like, "Holy shit, you got hung up on that? The color of somebody's socks. What the hell are you talking about?" So when somebody says it depends, sometimes that's what I'm talking about. Like, "Hey, man, you got force majeure clause, it says this, this and this. I think that you're going to get this." But who knows the end of the day because that [inaudible 00:40:28] might be a moron, or the trial judge might be a moron."
Rob Schenk:
I mean, hey, I respect all the attorneys out there. I mean at least in some jurisdiction, you don't have to be an attorney to be a judge. But sometimes judges get it wrong. Sometimes it's like that you're arguing and you think you're doing a good job in front of that judge and that judge is talking, thinking about his burrito that he's got back in his office, his quarter. So you never know. That's my thing on it depends. A, it could be the attorney doesn't even want to talk to you. B, it could be because they don't want to get in trouble. C, they don't want to talk to you long enough to get variables A-Z, and D, sometimes they're just like, "Man, you could have an open-and-shut case. That's really not open-and-shut. Again, that's another... I try to time myself to like less than two minutes to answer these questions so that I'm not boring you. But that's the answer that you didn't want on, it depends.
Michael:
No, I love a detailed answer so don't worry about that. I got one more question for you and then we'll start to wrap up. I know we both have a hard out today. We got lots of things to be doing. So let's say I shoot a wedding and I do a bad job, right? Or maybe I do a fine job, but the client is for whatever reason, emotionally wrecked. Right? They didn't like the video, they didn't like how it turned out. I'm just curious, I mean, how much can they really...? I get that anybody can file a lawsuit for basically any reason.
Michael:
And I know in your last answer you talked about there's so many variables, so maybe you can't really give me a good answer on this, but maybe just kind of humor me as best you can. In a case of emotional distress, I worry about... And thankfully, all my clients have been awesome, but I always worry about, "What if I get this one client who's just emotionally unstable and I don't know until it's too late and they sue me because their video, they don't like it?" I guess my question is-
Rob Schenk:
I got you. How do you protect yourself from damages in a breach of contract lawsuit that are based on emotional distress? The idea of personal injury. And actually, even though it depends, I can give you a pretty concrete answer. That typically the law of tort, which is like infliction of emotional distress, these types of damages that I talked about earlier being career enders. Typically, if the genesis or the origin of the person's injury lies within the breach of contract, typically more than likely, you're not allowed to ask for those damages. Because if the origin of why you're hurt stems from that you did not do a good job under your contract, then you're limited to contract damages. So if the client sues you for contract damages, they're limited and we won't get into that, but emotional distress damages will typically not be included in that, almost never. Because you're not allowed to bring a claim for negligence or emotional inflection or emotional stress or whatever in contract if they're in fact the same.
Rob Schenk:
If you just didn't do a good job, then you should be pretty much protected from those type of damages. Now, there are cases in which if you go to the event, you cuss out the bride or you lie or things like that, that's where the origin of their injury is separate and apart from the bad job that you did, if that makes sense. It's the concept of an independent tort. So that's when you could be liable for those type of damages. So now what can you do in your contract? There is a concept in the law called limited liability. And so you through your contract and the limited liability provision can can say, "You and I client are agreeing that this is an arms-length transaction."And even though this a once in a lifetime, well, hopefully once in a lifetime situation for you, we are going to agree that if I do a bad job and you need to sue me, you are going to be limited in damages to X, Y, Z amount."
Rob Schenk:
Oftentimes what you're going to see in the contract, it'll be unlimited to the amount that you actually paid. So if they sue you for breach of contract, if the contract by is 5,000. If what you did is actually a breach of contract and not some other torts, then they'd be limited to $5,000. So that's how you can do that. But like I said, if you go to the event and you punch somebody in the face, they're suing you for assault and battery, and it doesn't matter if you did a good job or bad job of what your contract says, they're going to be able to sue you for that and get those type of career ender damages.
Michael:
Sure. Yes. So let's just not punch anybody in the face. We should be mostly okay. Yeah, this has been great. It just reinforces what I tell people all the time about having great customer service. I'm the kind of person that I... Some people might view me as a little bit of a pushover or whatever, but when it comes to making sure my clients are happy, I do absolutely everything I can, even if it means I eat in our hotel room cost or I spend an extra three days switching out music and a video or something, I do everything possible guys to make sure that my clients are happy at the end of the day. Because Rob's right, they can go online, they can bash you, and they can make your life hell if you're not willing to really hold up your end of the agreement as best as possible. Rob, I appreciate the time. Where can people find you where? Where can they reach out to you? Where can they see what you're doing?
Rob Schenk:
If you want to see me, I'm @weddinglawyer on Instagram. You can go check out my YouTube channel, which is Wedding Industry Law, or go to the website which is Weddingindustrylaw.com. A lot of content's up on the YouTube channel. So I encourage you to go there and the podcast, Wedding Industry Law Podcast is anywhere you get podcasts.
Michael:
Awesome. Guys, make sure you go check out and see what Rob's doing. He's really doing some really good stuff. Make sure you subscribe to his podcast because I've listened to a few episodes and so far they're really good. And I think you're doing something that is definitely needed within the industry and you're covering a topic that's extremely relevant, so we appreciate everything you do. And like I said before, we appreciate you coming on the show today.
Rob Schenk:
I appreciate you guys. Awesome. Thanks a lot.
Michael:
All right. Guys, that was my interview with Wedding Industry Attorney, Rob Schenk. I hope you found this episode to be extremely helpful and hopefully you'll walk away feeling a little more informed and confident going forward in your business. I'd encourage you to listen to this episode again and also check out the resources available to you through Rob's podcast. And until next time, guys, later.