Settlement

When Should You Settle A Case?

by Fred Abramson on September 23, 2009 · 2 comments

Whether you are a plaintiff or defendant in a lawsuit, nearly all cases are settled before trial. The question then becomes, when should you settle a case?

There is no “one size fits all” answer as to when you should start discussing settlement with the other side.   Each case is different and involves using different types of negotiation strategies.  However, early case evaluation can lead to sensible conclusions as to what the appropriate settlement should be.  This can be accomplished even in the early stages of litigation.

Here are some possibilities:

  • If you come to the conclusion that  the other party is reasonable, you may be able to quickly come to a settlement and should start negotiations early, often pre-suit.  Why bother with litigation costs if your adversary is likely to behave rationally? This often occurs if the company that you want to sue is established and the matter is simple.
  • On the other hand, there are times when your case is complex and that discovery is needed to fully evaluate what a proper settlement figure is.  If the company that you want to sue is hiding information, then  it would be prudent to procede to litigation and perhaps start discussing settlement after receiving the necessary documents.

Generally, if you have a rational adversary,  the smaller your case,  the easier it is to settle in the early stages.  

 

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Breach of contract occurs when a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance. If the party does not fulfill his contractual promise, or has given information to the other side that he will not perform his duty as mentioned in the contract or if by his action and conduct he seems to be unable to perform the contract, that party is said to breach the contract.

An example of a breach of contract lawsuit is when a client has failed to pay as per a written agreemtn. What should you do?  First you should see whether the other side has any defenses. Should you call a lawyer and start a lawsuit?

Below, is quick guide that summarizes the basic steps, legal process and expenses of a breach of contract lawsuit.

Legal Steps:

1. Prove existence of Agreement;

2. Prove breach of Agreement (failure on one side to perform or pay);

3. Prove damages due to breach (loss of profit, damage to business).

Legal Process:

1. File Complaint with the Court;

2. Defendant answers the Complaint, and could start a counterclaim;

3. Period of Discovery which are oral and written questions from each side. Interrogatories and Bills of Particulars are written discovery. Depositions are discovery interviews.

4. Discovery conferences. For example, in New York County, you will have a preliminary conference and a series of compliance, status and settlement conferences.

5. Motions requesting certain relief. For example, a party may make a summary judgment motion if they believe that there are no issues of fact and that they are entitled to judgment as a matter of law.

6. Trial

Expenses:

1. Timeframe: Between 1 and 5 years.

2. Retainer: A common breach of contract retainer is between $5 and $20 thousand dollars.

3. Court costs: Between $500 and $10,0000.00.

4. If a case proceeds to trial, $20-$100,000 is not uncommon.

If you have any questions regarding a breach of contract, contact me at the Law Office of Frederic R. Abramson at 212-233-0666