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Unhappy Clients and Potential Liability

So let's say that we've got some on happy clients anybody ever had an on happy client know li you are so lucky bob you know always happy anybody everybody's always happy I had an unhappy client a graphic design client okay when what were they unhappy with um when I got down to the very end of doing their website they wanted some little tweet gone the menu that I didn't know how to do and so they said I'm not gonna pay you and you said okay okay okay and that they had already had the work no she didn't deliver the work right? Okay let's let's get some stories from the internet about stories of unhappy clients and how photographers have dealt with them because I mean granted if we're doing a great rock star job of delivering outstanding customer service exceeding our client's expectations across the board we shouldn't have ah lot of unhappy clients but you know what everybody has the potential to be an unhappy client can have you ever heard the analogy if you do a great job for your clie...

nt that personal go tell one or two other people but if you do a lousy job for your client they'll go tell ten or fifteen other people because the people that feel uh um slided are going to be more vocal the people that you've done a great job for going to be likely to be a little less vocal so what are our sources of potential liability if we have a client that says, you know what? I really don't like the skin tones on my album I really don't think that they're realistic that's a pretty specific general to the point gripe that a client could lodge now nobody will cause of my experiences, most clients are happy to have their album they're emotionally invested in and you could give them greens skin and they would know the difference sadly, uh, but if you did have a commercial client now that's a consumer client but if you had a commercial client that was going to press with images like I've shot catalogs before, where delivering realistic skin tones are very important because they don't want, you know, the nineteen seventies vibe going on on the skin tones if they're printing traditional realistic skin tones so we might have different sources of liability to our clients that include breach of contract obviously breach of contract is very specific that's where somebody's going to be able to point to a contract and say, look, you didn't do this you were supposed to do this. Um, defamation home I where do I start? Um just because you can log on to facebook and type doesn't mean you're not gets going to get sued for what you say uh, there are more and more cases on it coming down where folks are being sued and losing defamation cases where they're saying untrue things about other businesses and people online and fact some of the successful businesses in brand management they'll have somebody that does nothing but manage their online presence and when people say bad things about him you'll get a letter from them or an e mail from him saying if you don't take down what you said uh we're going to come after you and we're going to sue you so a source of potential liability for photographers is what we say and it's kind of like the rules and the creative life chat room it's simple keep it nice right keep it nice if you keep your online presence nice chances are you will never have a liability from defamation but defamation is saying something untrue about someone else accusing somebody of committing a felony is one of the bad defamatory statement so if you ever say somebody did something so bad that it would account it would constitute a felony in your state that superbad and you'll owe somebody a lot of money if it's not true negligence what is negligence negligence it its very essence is carelessness, carelessness you could be a careless driver you could be a careless teacher you could be a careless graphic designer you could be a careless photographer you could be a careless surgeon you can be a careless pilot carelessness occurs. When are our conduct? It fails to meet the standard that an average, careful, prudent, trained person on our field would use in the same or similar circumstances. Or, in the case of a commercial contract, failure to perform in a substantial and workmanlike manner. More on that later personal injury is a simple one. We run over somebody with our car, we drop a light, stand on someone or you pick up a c stand and swing it like a, uh a broad sword. And you hit your assistant in the head with it, employees liability that could be discrimination. It could be overtime violations, etcetera. We want to make sure that we understand that we could be liable to our employees and then malpractice. Malpractice is another word for negligence, but it's kind of like professional negligence, and we'll talk about that a little bit more when we get to insurance. But remember, mel, practice is your errors. You're omissions, your professional negligence, it's not personal liability or personal injury. So our commercial liability insurance policy is going to cover us if we do something and we injure someone or if our property is destroyed. But if we sleep in for a wedding are professional liability coverage is not going to cover us unless we have arizona omissions coverage which is available through the peep a indemnification trust or if you purchase a separate arizona omissions rider from a company like I think the hartford is carrying it and we'll talk more about that later let's talk about malpractice should there not be this this this idea of a basic level of professional competency and prudence in photography whether we have a contract or not how do we avoid a claim that we didn't perform in a substantial and workmanlike manner because if somebody hires you is a professional, there is implicit in that agreement toe work for that client that you're going to perform the work in a substantial and workmanlike manner what's that mean I talked on day one about this concept that professionals that hold themselves out of profession as professional should have the same skill the same level of photographic skill that a surgeon it was going to do ah heart valve replacement would have if he was going to cut you open. So what is that? Um what is that level of skill? Because if you can't define what that level of skill will is and somebody says that you didn't rise to that level of court gets to define it so what's that mean we have new can you correctly expose an image you have some idea of composition of white balance can you shoot achieving crisp focus? You have some creativity? Do you have the ability if your graphic designer to bring elements of graphic design to a project? I mean, I just want to get people's mind around the fact that just because you say you're a professional and somebody's willing to pay you doesn't mean that you're not going to be subject to liability if ultimately, you know, perform because that's what you're being hired to do is perform right what was the question that we ask for the internet, jim, the question of the internet have you ever had an unhappy client and how did you deal with it? So what do we get? So dominique heart said I had a client that required more than what she was willing to pay and even more than what her schedule allowed, so we have to part ways had to call it quits and sometimes getting away from a problem client is the best thing that you can do it avoids if you try and try and finish a job for an unhappy client, they're never going to be happy it's best just to walk away so that's great that's that's what I would have recommended and hey jude and the chairman says I have one back in film days they complained to get free prince they see me and got everything but proofs had been removed they complained about star filters and diffusion filter is saying they were out of focus of course they were not just said he knew nothing about photography but judged against me anyway that's unfortunate you know he mentioned free prints and one of the easiest and cheapest ways for a photographer to deal with an unhappy client simply is to give them free prince ultimately is muchas I tear my hair out from time to time when I get requests that I think are unreasonable ultimately you'll end up saying yes to them and it's sometimes simply easier to say yes than to argue with him about it because ultimately the customer is always right but if they are particularly unhappy, you might say, you know what I tell you I'd love to give you ten eight by tens and those air normally thirty dollars apiece so that's a three hundred dollar value would that make it okay, um I have um oh should I tell all of my stories? Yeah, has anyone else had that phone call now this particularly happens when you have two jobs and you're somewhere let's say you're forty miles away and your phone rings and somebody says hi, this is so and so where are you on my way is the correct answer um and so hot dr I don't want to admit to committing too many crimes online, but when you drive a dodge challenger rt that thief you'll will shut off at one hundred and forty six miles an hour so you can't drive one hundred and forty six miles an hour I've driven it talladega so I mean I understand car in speed and you want to kill people get to your session so drive the speed limit but it's possible to cover a great distance in a short period of time and get your camera bag and change clothes on the way so when you show up to a gig an hour late, you show up with your apology on and you show up offering free stuff like a free book I'm going to give you a free graph e album because I'm an idiot and you continue to call yourself an idiot for at least forty five minutes and then it's usually okay, but apologizing and offering free stuff will cure a multitude of of sands, including your own inability to write things down on a calendar. So, um I mean, I've had this happen to me I'm not just telling stories about other folks this is reality and it's gonna happen and when it does it's how you deal with it that governs whether or not your client's gonna like you in this particular client who had the potential to win and she was she's a lovely woman very particular and if it would have gone the wrong way, it would have been the client that you would not have wanted to have hate in you had a big online presence very particular, but but because I handled it that way I mean, I believe I've got a customer of angeles dinner which is the opposite of the hater so I had a personal bad experience when I was a bet now okay, no, but I have significantly changed my pricing in the last year and so some former clients came back and they booked and they were all excited and they knew about the increase in rate they paid for it to book the session on dh, but afterwards they knew that they weren't getting the images with the purchase they me they would be purchasing prints online and so I failed to send them the price list of the prince on dh my mind there really fair rates, but afterwards they we're really unhappy with the pricing and they both were lawyers, so I was like training really don't do me any favors. So anyway, I don't know what you would have done in that situation, but I ended up giving them a discounted rate for the desk um in the pursuit of maintaining their relationship, but I what I I was lost for work out okay though it then doesn't feel good while you're going through it though now but let me tell you a quick note you did the right thing lawyers the practice of law would be great if there weren't lawyers or clients okay? And I tell people that all the time I was my job would be great lawyers are the worst and they will bully us his photographers and they will claim some special expo expertise and they will tell you that you can't do something that I'm telling you to do and they'll tell you that you're wrong and they'll tell you they won't do it send them down the road all right do not change your business practices just because the client that your marketing to is a lawyer all right? And and I mean that because you remember todd rina's that the fellow with the forty eight thousand dollars last dance his father in law was a lawyer one of the top law firms in new york and who do you think was working for old todd ramos causing that photographer all those problems so it's cheaper cheaper for for tights chief to file a lawsuit but it's cheaper for lawyers to file lawsuits? So I guess what I'm saying is if you have a workflow that you're implementing based on this seminar which is gonna cover your backside you're six don't vary it just because some lawyer says I'm not going to sign the contract don't ever change your contract I never changed my contract I've been asked to I explained my contract I never change it ever ever for anybody now maybe there's an exception to that but I haven't found it yet um, so I think there's this basic level of professional competency that ultimately gets to find in court if somebody says you know what? I paid you five grand you shot my wedding yeah you say you're giving me my money back but you know what? I don't think you you met the basic level of professional skill incompetency and let's go have a trial about me getting more or my contract says that's all you get but if you weren't using a contract like that where your maximum liability was refunding the money you could be you could have some exposure there. Um, let's talk about equipment the equipment that we choose is secondary to the finish product, but we have to recognize that equipment like people if they have their limits. So what you carry in your bag goes to your professional competency. I'm not saying to be a pro photographer you have to have a bag of el siri's glass, but if you're going to undertake a project, you've gotta have the right tool for the job, so I was talking with lee about doing architectural photography and what was the first question I asked you what were you doing the architecturally what lends doing? And I followed up I said what using a till shift you said no and that's cool that's fine I'm not judging but if we had an issue with an architectural shoot and there were some perspective issues that weren't corrected and we were hiring somebody to deliver architectural photos, I might have ah issue with the lenses that you chose for the job because we choose different tools to achieve different results likewise, if I go in to shoot the wedding and the bride is walking down the aisle and here I am with my lens baby composer you know trying teo photograph from walking down the aisle that's not the right tool for the job there's nothing wrong with that but you have to have another lens that would be more suitable for that activity like a twenty four to seventy etcetera so that's that's important to the other thing when we talk about malpractice I know a ba jillion photographers that would have walked into a gig with a brand new camera and brand new equipment and had no idea how to use it I'm one of them you want to hear my story? I went to shoot ah political event and I went in I had a shooting five day at the time there was infighting mark to make so it is a five day mark two it went down own I went to my backup, which was a uh seventy I had no idea how do you know how to get it to do something very simple because the menu's changed from the five d mark to to the seventy and I couldn't get it too changed the focus point I had the manual and I'm sitting there reading the manual so I didn't know what I was doing, but I had to use this camera's I ran out into the hall in a panic called cannon professional services got somebody on the phone gave him my number they told me how to use the camera and I finished the gig because I couldn't figure out how to get it to do this thing that I needed it to do. I don't even remember what it wass, but I didn't know how to use my back up camera cause I got it the day before and wins the on ly time that I've ever had to go to my backup camera it wasn't that one gig that's the only time I've ever had to go to my backup and I didn't know how to use a camera I had it, but anyway I got the job done somebody else needs to start telling stories about themselves so again know the limitations and have a backup um the other thing that I'll mention and I'm not judging but happy accidents don't always make the clients happy lens flare is uh used to be a problem now it's a desired effect uh distortion is ah problem now sometimes it is a desired effect same with chromatic aberration so I just mentioned that that you know if you know how to achieve that effect and that's what you're going for that's one thing but if that's a product of you not knowing what you're doing, it just makes me want to encourage people to go out and become more familiar with their equipment take a class, etcetera, because ultimately if you don't know those things, it would be embarrassing toe be asked some questions on the if you really want to know how much you know you can log on to peep a and take the sample of certified professional photographer test it's short it's to the point you do have to study for it, so I mean I wouldn't expect to pass it on the first time, but it I'll tell you a women's of your knowledge so it's kind of fun too to see what you know also know the limitations of your computer equipment if anybody's been in business for any amount of time you've had one, two, three or four hard drive's fail let's ask the internet a quick question what would be the record number of hard drives to fail in the shortest period of time okay I've had one or two fail within a couple of months I've had a raid system go down but I'd like to know what everybody's experiences with the the greatest number of hard drives failing in the shortest period of time and sadly I will tell you that there are they were always going to fail at the worst time and your c drive with all your programs on it will fail it's not just your external hard drive that storing your images your c drive will fail too so I think that the standard of care in the industry is to have a comprehensive backup and I think the standard of care is to have an image ah a mirror image back up that is uh uh ready to go so that if your c drive fails it's called bare metal restore and bare metal restore is where we have the ability to take our backup drive plug it in put a new drive in in restore the c drive onto a brand new drive and plug it back in just like it never happened all within about twenty four hours now remember for moving multiple terabytes of data it takes a while to recreate these drives so knowing the limitation of your computer equipment and having a plan is all designed to take away any excuses for a pro photographer to ever lose a single image I think if a bride came to me where a wedding photographer had lost their images unless they were lost between the wedding and the studio I could soothe ever love and snot out of him because the standard of care in the industry is we should never lose a single image the other way to lose it is fire. So do you have a, uh, offsite backup for your images? Are you periodically taking a drive and putting it in a fireproof safe and storing it off site? Uh remember those fireproof safe spokes if you are doing that they're designed to keep the internal temperature at three hundred fifty degrees or less and three hundred fifty degrees will fry the hard drive so you actually have to have two containers and put one inside the other if you're going to keep it at home or you can keep a copy at your uh in your safe deposit box off site cloud is the easiest but it takes a while to get the image is there I do recommend storage craft it's, a software company that has a product called shadow protect it's kind of like quickbooks are in photoshopped in that it's got a lot of features that you might not use but it runs every day it does not run in the background all of those programs like mimi oh that run in the background that slow your machine down is graphic artists all of us we can't have our machines being slowed down with these constantly running backups, they need to run about the time that we go to sleep, we need to run incremental backups everyday and when my drive failed, I mean, it was a little bit of a trick, but I mean, I was back up and running on my c drive in probably thirty six hours, and I had a big gig coming up, so I had to have all of that stuff reinstalled, and so it worked out really good what's what's the internet say about the largest number of drives failing in the shortest period of time. We will get back to you on that question, all right, mohr to come later, I had a horror story. I did a photo shoot ones where you were looking for for a client and, uh ah long day of shooting, and I went to a a local lab to do my film processing, and I had never done multiple reels of film that one time before oh, you're going all in. Yeah, and so I was like, I'm doing that, I robbed him all up. I put him into this five rial tank of all my thirty five millimeter film and process it at this local lab myself. And someone had mixed up the fixer with the developer it's like two steps in one yeah, and so the client you know, so I end up going back to clients that I will pay to have the model come back and I will do the reshoot for you, you know, of course for free and we use their studio in their space so they were kind enoughto allow that to happen, which was great and that's one of the things about the people a indemnification trust that's what they work out, I mean, they've every wedding in portrait photographer part of their dues goes towards the wedding indemnification trust and they're great about the reshoots, so if you have a situation like that come up just like tim explained if you'd didn't work that out on your own if you just turn it over to them, they would cover all of the expenses associated with that reshoot down to buy in jim's film to pay in the model to making sure that the clients happy to deliver in a little extra product too make it go away that's kind of what they do. So if you're not a pee pee a member that's one of the benefits of membership is the indemnification trust and it's kind of like your own malpractice or errors and omissions policy it's not specifically an insurance policy but it acts like one