Do I have a case?

Can I attain my goal in some other approach, for example, by proposing a compromise settlement or mediation?

Can I collect (if and) when I win?

If the answer to question one or three is no, or to question two is yes, you probably won't want to file a suit.

To figure out whether you have a good case, it helps to know that lawyers break each type of lawsuit ("cause of action" in attorney-speak) into a short list of required elements. It follows that as long as you know what the elements are for your type of lawsuit, it's usually fairly easy to determine whether you have a good case.

For example, a lawsuit against a contractor for providing poor quality construction would be for Breach of Contract (the contractor agreed either orally or in writing to do the job properly).

The legal fundamentals for a Breach of Contract include:

•	Contract Formation- You must show that you have a legally binding contract with the other party. If you have a written agreement, this element is especially easy to prove. Without a written contract, you will have to show that you had an enforceable oral (spoken) contract, or that an enforceable contract can be implied from the circumstances of your situation.
•	Performance- You must prove that you did what was required of you under the terms of the contract. Assuming you have agreed upon your payments and otherwise cooperated, you'll have no problems with this element.
•	Breach- You must show that the party you plan to sue failed to meet her contractual obligations. This is usually the heart of the case -- you'll need to prove that the contractor failed to do agreed-upon work or did work of poor quality.
•	Damages- You must show that you suffered an economic loss as a result of the other party's breach of contract. Assuming the work must be redone or finished; this element is also easy to prove. The legal elements for other types of lawsuits are different. Even if you decide you have a good case, don't rush down to the courthouse to file a lawsuit. First, think about ways to settle your dispute out of court.

In addressing the third question, "Can I collect (if and) when I win?" requires much attention. There is no point in getting a court judgment against a deadbeat.
Here is how to think about it.

It is in the best interest of the both business to culminate negotiations, and therefore, most reputable businesses and individuals will pay you what they owe. But if your opponent tries to dismiss you, you may be in for a struggle. Unfortunately, the court won't collect your money for you; it will be up to you to identify the assets you can seize.

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Oral versus Written Contracts
Generally, both oral (spoken) and written contracts are legally enforceable. It is generally best, however, to write down the terms of the contract in case there is some dispute between the parties after the contract is formed. If the contract is oral, the parties to the contract may later remember different details about the contract terms, or forget certain terms entirely.

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Civil Litigation
Civil litigation is a lawsuit that can be undertaken by an individual or company, seeking to reclaim what is owed to them. Civil Litigation is sometimes viewed as a final alternative used in an effort to protect a client's rights. However, litigation can be costly, time consuming and often stressful. Each client is provided with personalized attention in order to find an effective and fair solution.

Litigation is a procedure to resolve a dispute arising out of a variety of factual circumstances. Normally, it is referred to as a lawsuit and consists of some form of court action. In any lawsuit, there is always a plaintiff who files a written complaint or petition with the Court.

A plaintiff is the person who started the lawsuit. Then, there is the other party called the defendant. The defendant responds and the case proceeds through trial procedures and ultimately is resolved by a trial or motion.

Trial can either be by:

The Court that is before a judge or

Jury which is a group of citizens chosen at large from the community.

To commence a case, a summons is issued by the Court Clerk. It is important never to ignore any summons served on you. Consult a lawyer or take the appropriate action as stated in the summons where applicable. If you do not do so, the Court may enter a default judgment against you in your absence on the hearing date.

Ultimately, the goal is to achieve a desirable result as quickly as possible. When a satisfactory result cannot be reached through negotiation, vigorous and aggressive litigation may be the only answer. Representation is available in federal and state courts, arbitration and mediation.

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Nonperformance and Breach of Contract
The basic rule when involved in a Nonperformance or Breach of Contract dispute, is that parties to contracts must perform as specified in the contract unless (1) the parties agree to the change in the contract's terms, or (2) the actions of the party who deviates from the terms of the contract are implicitly accepted ("ratified") by the action or non-action of the other party.

If there is no acceptance of deviation from the terms of the contract, and the deviation is serious enough to make any real difference in the intended result of the contract, then the deviating party is said to have breached the contract. His justified prevention or interference with the performance of the other party is also a breach.

Of course if one party fails more or less entirely to perform the contract, or totally prevents the performance of the contract by the other party, the situation is straightforward. The situation becomes more complex where the argument is over the quality and value of the materials or the timing of the work.

Breach of contract leaves the nonperforming or improperly performing party open to a claim for damages by the other party. The non- breaching party is relieved of his obligations under the contract by the other party's breach.

The aggrieved party, to help support his claim for breach, should have done all the things required of him under the contract up until the time of the breach, and must have done nothing to make it impossible or unreasonably difficult for the other party to perform his share.

The nonperforming party can be expected to make excuses for his conduct, and he will try to find ways to blame the other party-an excellent argument for performing one's own side of a contract punctiliously and in a manner that leaves a record which others can see.

There are so many possible ways for performance of a contract to give rise to dissatisfaction that the courts have been forced to analyze the matter in much more subtle terms than "breached" or "not reached."

The doctrine of "substantial performance" saves a party who has largely fulfilled his obligations under a contract from suffering major loss merely because he has unintentionally fallen short in some particular which does not affect the essence of the contract.

For instance, there has to be a limit to the trivial objections of the dissatisfied customer, otherwise, the courts would be swamped with trials over precise shades of paint and tiny imperfections in services. A party can unintentionally fall short of perfection, but if he has substantially performed his duties under the contract, he can still sue the other party for payment.

The dissatisfied party, on the other hand, can usually win some adjustment in the amount of payment as compensation for the minor defects in the performance.

A party's unintentional failure to perform fully does affect the essence of the contract, and therefore one party cannot sue the other party "on the contract" in order to be paid. As addressed previously, to the extent that the work has benefited the other party, the "one" party may recover on the theory of a contract implied by law (quasi-contract).

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When Does a Breach of Contract Occur?
If one side fails to stick to her part of the bargain, there is a breach.

A breach occurs when:

A party to the contract does something against the intent of the contract; or

A party absolutely refuses to perform the contract

One party to a contract makes it impossible for the other parties to the contract to perform

Not all breaches of contract are necessarily "contract killers" which would end up in a lawsuit. Much would depend on whether the breach is "material" or "immaterial" and who the parties are.

If the breach is immaterial, you may have the option to:

Ignore or excuse the defect and continue on as if nothing occurred,

Point out the problem to the responsible side and give it/she/him an opportunity to fix it,

Refuse to pay anything more until it is fixed, or

Correct the work yourself and deduct the cost from any payment.

What makes sense for you will depend on the facts. Where the matter is substantial, the advice of an attorney can help you.

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Damages for Breach of Contract
When one party has breached the contract, the party who has performed is entitled to various remedies for the breach.

•	Consequential Damages: This requires the breaching party to pay the non-breaching party an amount that puts the non-breaching party in the same position they would have been in if the contract was performed.
•	Punitive Damages : Courts can force the breaching party to make a payment as a punishment for the breach
•	Liquidated Damages : The parties agree, at the time they make the contract, that if one party breaches the contract, the breaching party should pay a specified sum. Thus, this is an amount written in the contract.
•	Nominal Damages : This is a minimal amount provided to the non-breaching party if that party won the case but did not financially lose much.

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Remedies
The ordinary remedy for breach of contract is money damages. As I touched on previously, a contract should always foresee the possibility of nonperformance, intentional or unintentional, and should spell out what is to be done.

Some contracts go so far as to include an agreement on a set amount of "liquidated damages" which are to be paid in case something goes wrong. These are acceptable to the courts as long as the amount of liquidated damages is a reasonable estimation of the harm that would be done by the breach.

If the amount is as excessive as to amount to a penalty or fine rather than compensation for harm the courts will ignore the liquidated damages clause and assess damages by actually measuring at trial the financial harm done by the breach.

You should, unless the provision may pose a worse threat to you than to the other party, specify in your contracts that if legal action for breach is necessary, the losing party will pay the attorney's fees.

If you and the other party live in different geographical jurisdictions, you should try to include a provision which says that the contract is to be enforced under the laws of your jurisdiction. This makes it possible for any litigation concerning the contract to take place in a court near your home.

The purpose of damages in suits on contracts is at best to place the injured party in as nearly as possible the same position he would have been in had the contract been properly performed, and at least to restore him as nearly as possible to the position he would have been in had he made no contract at all. In other words, no one should suffer loss because another has failed to perform a contract properly.

Nonperformance is absolute. For example, the damaged party should get back any money he has paid, along with additional money to compensate him for any actual financial loss which resulted from the nonperformance. The loss must be a reasonably foreseeable result of the nonperformance.

Do not expect, however, to receive money damages designed merely to punish the breaching party for dishonesty or bad behavior. Such "punitive damages", which are possibilities in suits for personal injury and other wrongs, are not available in suits on contracts. Of course if you can allege that you were defrauded, for example, then you are suing for wrongdoing beyond the breach of contract, and you may receive punitive damages.

The principals of damages in contract suits are as numerous as the problems that can arise from contracts. All I have been able to do here is to give some idea of the ramifications.

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Other Remedies
Other remedies for the Breach of Contract include the following:

•	Specific Performance : A court can require the breaching party to perform their duties under the contract. This is afforded for unique circumstances.
•	Rescission : A court can pretend like the contract never existed. Here, neither party would be required to perform the obligations under the contract. If there has been performance by one party, the court does its best to put that party in the same position he or she was in before the contract was formed.

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The Time Limit for Filing a Breach of Contract Lawsuit
The statute of limitations (t he amount of time for filing a breach of contract lawsuit) varies by state. If a party wants a remedy for a breach, and they do not file within this time limit, that party cannot file a lawsuit. In Massachusetts , the time limitation is 6 years.

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Do I Need a Lawyer for my Breach of Contract Issue?
Contract law can be quite complicated. Additionally, every state has different lawsuit filing procedures and deadlines for breach of contract claims. An attorney can help a party conform to the applicable procedural rules and collect all the proper documents to prove a breach. Moreover, an attorney can help you negotiate the terms of a contract before you make or accept an offer.

My best recommendation is for you to seek legal council to represent you and your best interest in the dispute. Take the time to seek a competent and qualified attorney. In doing so, you eliminate uncertainty and risk and allow yourself to feel confident that all legal aspects of your claim will be properly targeted and addressed.

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Collection of Money
Collection efforts extend to tort claim recoveries and contract damage awards.  Your attorney should recover the balances legally owed through all of the processes available including garnishment, execution of assets and foreclosure of security interests. 

In addition, your attorney will be familiar with the court-provided measures to assist with the process by identifying assets and income, such as orders for disclosures with contempt proceedings, supplementary proceedings, and other penalties for failing to disclose. Your attorney can handle the collection of debts and judgments on an hourly or contingency fee basis.  Finally, your attorney will analyze the case to determine which arrangement is more appropriate to maximize the benefit to the client.

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How Do I Collect If I Win a Case?
When a party wins in Court the result is confirmed by way of a judgment. Normally, the losing party will pay the judgment voluntarily to clear the judgment from the public record. A judgment can adversely affect a person's credit rating.

Where the judgment is not paid voluntarily, there is the enforcement of judgments and orders which can be executed for collection of money unpaid on the judgment. Among the more common execution procedures are obtaining prohibitory order, writ of seizure and sale, Criminal Law and garnishee proceedings such as bank accounts and order of committal.

Thus far, there exist a series of limitations that enable a debtor to protect funds sufficient to provide the "necessities of life," while making payment against the unpaid money on the judgment simultaneously.

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How Are Contract Damages Figured?
If your claim involves a contract, the purpose of compensatory damages is to put you in as good a position as if the defendant had performed the contract. You will be entitled to damages that you can show were actually caused by the defendant's breach of the contract, which were reasonably foreseeable at the time you entered into the contract, and which are sufficiently certain so as not to be "speculative".

In other words, if you agreed to sell a product for $3,000 that would have cost you $1000 to manufacture and deliver, and before you incurred any costs the buyer changed its mind, the damages would consist of the profit of $2000 you lost. Even if you could prove that you would have invested the $2000 in a stock that later went up ten-fold, that extra amount would be regarded as speculative and unrecoverable.

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What Are The Defenses to a Claimed Breach of Contract?
There are many valid defenses that can be raised to a claim of breach of a contract. Depending upon the particular facts and circumstances of the contract and the actions of the parties, an attorney can advice you of what makes sense. Going it alone is not the wisest choice and legal help is almost a certainty.

The more common defenses to a breach of contract claim include:

One side was not competent to enter into the contract, either due to age or mental illness

One side had a "free way out" and really never provided any form of "consideration"

One side was under pressure and duress or other undue influence to sign

One side engaged in "fraud" to procure the contract

One side prevented the other from fulfilling its/her/his end of the bargain

The original contract was changed with the agreement of all parties

There was a mistake of fact or mistake of law prior to signing the contract

The contract has an illegal purpose or act

Something happened, through no fault of either side, making the duties under the contract impossible to perform

The side claiming the breach accepted the performance without claiming a breach had occurred

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How Much Does It Cost to Hire an Attorney for a Dispute Regarding Breach of Contract?
Trying to estimate how much it will cost you in legal fees to pursue a Breach of Contract claim is very difficult. A lot will depend on the complexity and magnitude of the case. For a fact, the filing fee will cost you $200.00, and to service the summons and complaint will range from $30.00 to $100.00 dollars based on who you select ( to service and summon the complaint ).

As the complaint moves forward in the suit, the cost will continue to increase. Keep in mind, that the most expensive part of a suit is the trial preparation and the actual trial.

In conclusion, Breach of Contract disputes are never pleasant, but if both sides are willing to work together, settlements can be reached that are fair to both parties, and ultimately, you avoid the dynamics of the courtroom. Filing suit can be costly, but if you feel strongly about pursuing a claim, it is in your legal right to do so.

Remember it is the reputation and character of the business that assumes most of the losses when a dispute is in place. Therefore, it is to the best interest of the business owners to settle as justifiably and as rapidly as possible.

This article ( Law for Your Everyday Life- Part 1: Civil Litigation ) written by Attorney James P. Hentz was published in the February 2005 issue of the Bellingham Bulletin and the Blackstone Daily.

The Law Office of James P. Hentz is licensed to practice law in the State of Massachusetts . The information provided in this Web Page Site is offered for informational purposes only; it is not offered as and does not constitute legal advice. This Web Page Site is considered advertising under the rules of the Commonwealth of Massachusetts .

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You can email us regarding your case or your questions to jhentzatty@comcast.net,
call us at (508) 966-2926 or Fax: (508)966-2955

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