How to Win a Breach of Contract Case
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We can isolate some of the positive factors that will help you
win a breach of contract case and negative factors that will
contribute to losing it. Here are a few tips—given the
understanding that each case is different, that our past success
does not guarantee a future result and that by this writing we are
not creating an attorney-client relationship with you.
Collect relevant information. Before you can decide what to do,
you need to collect the relevant information and mentally digest
it, preferably with a lawyer.
- If your contract is in writing, read it. You
are one of at least two parties to the contract. What were you
supposed to do? What was your fellow contracting party supposed to
do? Who hasn’t done what and why? Do the same analysis if your
contract was oral and collect any writings that help prove what the
- Collect the correspondence leading up to the contract
and put it in chronological order. Do this especially if
the contract isn’t clear on some relevant point or if one of the
parties might claim that the contract was signed based on and
because of lies told by the other party. Jot down for your lawyer
the chronology of events not recorded on paper and any special
customs of your industry; talk to other employees who
- Collect the correspondence exchanged after the contract
was signed. Contracts can be modified by agreement. Was
it? One party can be prevented (legal term: estopped) from relying
on a contract term depending on what was said or done. Did a party
'waive' a contract term by intentionally relinquishing its right to
insist on performance? Analyze oral conversations not recorded in
writing to determine if the contract was modified or whether one
party or the other waived a key term or can be estopped from
relying on it.
- Analyze the parties’ course of performance—in this
project, and if similar, prior projects. If you didn’t
comply, why? Hindrance or the failure to perform by your opponent,
unforeseen problems (strikes, weather, war, etc.) or the fault of
someone else (supplier or subcontractor) may give you a defense
that justifies non-performance or the ability to shift the
responsibility for a contract breach to someone else. If you
complied but the other party didn’t, ask the same questions in
reverse. Collect the relevant documents and discuss matters with
your colleagues and employees.
- If you are defending a claim, review any and all
Without talking to a lawyer first,
don’t do the following. If you have already done one or
more of these things, tell your lawyer.
- Record any statements from your own employees or others.
- Destroy any records.
- Write any correspondence relating to the dispute.
Consider settlement. Can your case be settled so that you can
get what you want and give the other party what they want? Are
there other business opportunities that could be shared? If there
is a possibility of settlement (and many people say that a bad
settlement is better than a good lawsuit), consider whether you can
meet with your opponent and discuss your differences constructively
or whether a mediator could help bridge an impasse.
Arbitration or litigation? If settlement is impossible, you
should consider litigation or arbitration. Arbitration is faster
than the court system. The parties have to split the cost of an
arbitrator, whereas a judge is paid by the taxpayers. Appeals from
an arbitration are rarely granted and only in extreme circumstances
are appeal rights built into the court system. Only the court
system allows for a jury trial in a money damages case. Unless
arbitration is provided for in the contract, both sides would have
to agree to arbitrate.
While we make a living prosecuting and defending lawsuits, there
are ten common reasons not to file one:
- You owe your opponent more money than he or she owes you.
- You don’t want to turn over relevant documents to your
opponent’s lawyer or they are already shredded.
- You fired all of your employees who are knowledgeable about the
- You lack the time to educate your lawyer about the dispute,
retrieve relevant documents or give a deposition.
- You think that all witnesses tell the truth.
- You regard yourself as superior to jurors or the judge.
- You believe that just by filing the lawsuit, you will get a
- Your opponent lacks the money to pay a judgment.
- Your company or key witnesses must continue to do business with
your opponent or his or her allies.
- The cost of the lawsuit is more than you would benefit with
Since 1981, Thomas Patterson has represented businesses,
professionals and entrepreneurs in their Illinois business
disputes. Most often, they are breach of contract cases. In many,
our clients faced a legal crisis such as multi-million dollar cases
with intricate issues and emergency cases in which fast action was
essential. The Patterson Law Firm, LLC has been educating both
businesses and other lawyers on what is needed to win a breach of
The experience gained while handling nearly 500 cases (including
more than 30 trials/evidentiary hearings, 35 arbitrations and
numerous other negotiations and settlements), cost an estimated
$7.25 million. But it gave Patterson a corpus of knowledge: how to
efficiently prepare and win trials in emergency business cases.
If you have questions about your case contact us by email, telephone (312) 223-1699 or fax (312)
223-8549. Our first consultation is free. To see more information
on our practice areas click here or to find out more about The
Patterson Law Firm, LLC click here.