Most business litigation centers around breach of contract lawsuits. Purchase and sale agreements, leases, partnership agreements, vendor agreements and other contracts govern most business relationships and, not surprisingly, they govern when the relationship falls apart. Here are five tips on how to win your breach of contract lawsuit.
1. Hire the right attorney.
Not all attorneys are alike. In many instances the outcome of your case may hinge more on having the right attorney (and judge) rather than the case law in your favor. Ask these questions: (1) Does your lawyer have experience in this type of case?, (2) Has your lawyer been to trial in a business litigation case?, (3) Is your lawyer up to date on the law in your industry? You can answer these questions by checking the attorney’s website, which often lists the attorney’s experience, education, articles published and speaking engagements. You can also ask the attorney questions over the phone.
2. Compile all of your documents and evidence.
Be prepared when you visit your attorney. Gather all of the documents that relate to your case, including the contract, drafts of the contract, letters, emails, invoices and other documents which establish damage. If you are a landlord with a breach of lease or other real estate litigation, make sure you have all of the addendums to the lease. If you are claiming damages, make sure you put together all of the invoices, reminders and correspondence that establish your damages. Many people try to hide documents from their attorneys. Your attorney cannot properly analyze your case without all of the information.
3. Ask your attorney to analyze your case.
Many attorneys fail to analyze a case up front. Insist that your attorney do a full analysis of the evidence and the legal causes of action to figure out the strengths and weaknesses of your case. Ask for an estimated budget. Make sure you understand your case’s strengths and weaknesses from the beginning. This will increase your costs at the beginning of the case but will save you significantly more as the case progresses. Like driving across country, it makes sense to plan out your litigation at the outset so that you are always heading in the right direction.
4. Explore settlement.
Prolonged litigation is great for attorneys but not for you. Fighting a lawsuit is expensive, time consuming and stressful. You will also have opportunity costs—things you could be doing if you were not engaged in depositions or court hearings. As a part of your analysis, ask your attorney to analyze settlement opportunities. If you are a defendant, ask the plaintiff what they are demanding. Consider early mediation where the parties get together with a third party neutral mediator who can facilitate settlement. There is no obligation to settle, but it can make a lot of sense to settle early.
5. Ask your attorney to keep you informed.
Ask your attorney to send you all of the documents filed with the court and all the correspondence (including emails) between the attorneys. You are paying for the attorney’s time so there is no reason that you should not receive everything that you are billed for. By keeping involved in the case, you can spot errors early on, help clarify the facts and make sure that your attorney is making progress on your case.
If you follow these steps, you will have a better relationship with your attorney and you will be more successful in your breach of contract litigation.