Call us today to schedule your free consultation at 312-223-1699.
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 terms were.
- 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 participated.
- 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 in 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 insurance policies.
Without talking to a lawyer first, don’t do the following.
- Record any statements from your own employees or others.
- Destroy any records.
- Write any correspondence relating to the dispute.
If you have already done one or more of these things, tell your lawyer.
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. Appeal rights are burden in the court system. 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 dispute.
- 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 settlement.
- 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 total victory.
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 contract case.
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.
Click here for information about breach of contracts or call (312) 223-1699.