How do I win my breach of contract lawsuit or arbitration? What evidence do I need? How do I choose the right lawyer? How much will it cost? Can I make the other party pay my attorney’s fees? Attorneys Richard and Mary LaGarde answer these and other frequently asked questions for you below. Mr. & Mrs. LaGarde have represented individuals, small businesses, and large companies (including Fortune 500 companies), in breach of contract lawsuits in Texas, Louisiana, and Florida. Together, they have a combined 56 years of legal experience.
Q: What evidence do I need to win my breach of contract lawsuit?
A: These are the elements you generally must prove to win a breach of contract lawsuit in Texas, Louisiana, or Florida:
- You had a valid and enforceable contract;
- You are the proper party to sue for the breach of the contract;
- You performed, tendered performance, or were excused from performing your obligations under the contract;
- The defendant failed to perform his contractual obligations; and,
- The defendant’s breach of contract caused you an injury (damages).
Q: Does it matter whether my contract was written or oral?
A: As a general rule, oral contracts are enforceable. However, there are important exceptions. A verbal agreement can usually be enforced under Texas, Louisiana, or Florida law. However, there are important exceptions. Certain agreements are so important the law requires that they be in writing to be enforced. For example, Texas and Florida have a Statute of Frauds that requires an agreement to be in writing and signed by the party you are seeking to hold liable. The Statute of Frauds includes contracts for the sale of real estate, contracts for the lease of real estate for more than a year, contracts to pay the debt of another, and other important agreements. Without a signed written agreement, those types of contracts generally cannot be enforced. (Courts have recognized some very rare exceptions to this rule). Louisiana has similar writing requirements in its Civil Code.
Q: How do I choose the right attorney for my breach of contract lawsuit?
A: First, choose a lawyer who has a great deal of trial experience. The vast majority of contract lawsuits and arbitrations settle before trial. Despite that fact, it is our advice that you hire an attorney who has plenty of experience in trying lawsuits. There are two very important reasons. First, very few lawyers have a lot of trial experience. Many attorneys have never been to trial and are afraid to stand up in front of a jury to argue for their clients. As a result, they may urge their clients to settle for less than their cases are worth. An experienced trial lawyer will be more likely to steer you in the right direction when it comes to deciding whether to try or settle your case. Second, the other side’s attorney knows whether your attorney is a real trial lawyer who is not afraid to go to trial. If the other side respects your lawyer’s trial experience and skills, your case may be more likely to settle before trial and the settlement value may be higher. We always tell our clients that if we prepare for trial, the case is likely to settle. If we prepare for settlement, the case is likely to go to trial. That’s just good common sense.
Here are 3 additional tips for choosing the right lawyer for your case. Choose a lawyer based on (1) Qualifications, (2) Compassion, and (3) Communication. For more information about these 3 tips, watch our short video entitled How to Choose the Right Attorney for Your Case.
Q: How much will it cost me to file a breach of contract lawsuit?
A: Lawsuits can be very expensive. Many law firms only handle breach of contract suits on an hourly fee basis. That means you pay your lawyer an hourly up-front fee along with the expenses of the litigation. Most individuals and small business owners can’t afford that. That’s why LaGarde Law Firm handles contract claims under three different plans depending on the facts of each case.
First, our firm may offer to work for you on an hourly fee basis like most other firms. That means you pay us by the hour and you pay the expenses of the litigation.
Second, we may offer to represent you on a contingent fee basis. That means you only pay us a fee if we get a recovery for you. We front the litigation expenses which you then reimburse out of your recovery. If we don’t get you a recovery, you don’t owe us fees or reimbursement of our expenses. Most clients find that this fee structure is best for them for several reasons.The contingent fee system helps give you peace of mind that your attorneys are motivated to win your case and obtain the highest amount of compensation possible. Our attorneys spend time and money working on your case, and we are only compensated if we are successful. This means that if we agree to take your case, we intend to win. For further details and a short video on how contingent fee agreements work, see our Contingent Fee Business Litigation page.
The third plan is what we call a hybrid fee. A hybrid fee is usually a reduced hourly fee combined with a reduced contingent fee. Each case is unique and each client has different budgets for litigation. We try to work with our clients to find a fee plan that works best for them and for us.
A: What Damages Can I Recover in a Breach of Contract Case?
A: Some contracts have a “liquidated damages” clause in which the parties agree in advance how much will be paid if the contract is breached. In the absence of a liquidated damages clause, the law permits you to recover what are called “compensatory damages”. That means that generally you can recover “actual damages”.
The law in Texas, Louisiana, and Florida generally divides actual damages into two categories: “direct” and “consequential” damages.
Direct damages are those that result naturally and necessarily from the breaching party’s wrongful conduct. The defendant will have necessarily foreseen these damages in case of a breach. Direct damages are sometimes referred to as the “benefit of the bargain” damages. For example, lost profits you would have made on the breached contract would be considered “direct damages”.
Consequential damages are those that result naturally but not necessarily from the defendant’s wrongful conduct. For example, consequential damages might include profits you lost on contracts other than the one on which you base your lawsuit. Be aware that some contracts contain an agreement to waive consequential damages. That’s why it is so important to hire a lawyer who understands the difference between direct damages and consequential damages.
Q: Can I recover my attorney’s fees if the other party breaches our contract?
A: The answer to that question is dependent on the facts of each case and the state law used to decide the dispute.
In Texas, attorney’s fees can generally be recovered in a breach of contract lawsuit. Under Texas Civil Practice and Remedies Code Section 38.001, attorney’s fees are recoverable from the losing party if the claim is for breach of “an oral or written contract”. However, be aware that recent cases have held that Section 38.001 only applies to individuals and corporations and not to limited partnerships or LLCs.
Under Louisiana law, you can recover your attorney’s fees from the other party in only two specific circumstances: (1) where there is a contract between the parties that expressly requires the payment of the attorney’s fees, or (2) where a specific Louisiana statute requires the payment of the opposing party’s attorney’s fees. There are several statutes that provide for attorneys fees in Louisiana including suits on an open account.
Florida law is similar to the law in Louisiana. You can only recover your attorney’s fees in a breach of contract case if there is a statutory or contractual basis for doing so. Trytek v. Gale Industries, Inc., 3 So. 3rd 1194 (Fla. 2009). In other words, if you include a “loser pays” clause in your contract you can force the other side to pay your fees if you are successful. We may also find a statute that entitles you to fees in select cases.
Q: Can I call you to discuss my claim without getting a bill for your time?
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