Someone has breached a contract against you, and you wonder: what should you do?
Step 1: Gather together all records of your dealings with the person.
If you paid the person by check, you should be able to get copies of cashed checks from your bank. If you have an online bank account, log into your account and you should be able to see copies of the cashed checks. If you paid by credit card, your credit card statements should show that you paid the person. If you paid by cash, the person should have given you a receipt.
If you paid cash and you did not get a receipt, that was probably a mistake, but it’s not a fatal mistake. Look and see if there is any evidence that the person received money from you. If you have any recordings of phone calls or text messages which show that he received the money, that can be evidence. Also, if the person began to perform work, that can be evidence too. Example: You hired someone to repair your roof, and you paid in cash but you didn’t get a receipt. The person began work on your roof but didn’t finish. It’s not likely that the person would have done this work for free, so the fact that he began work could be evidence that you have paid him.
In addition to gathering documentation that you have paid the person, gather all other evidence of your dealings with him. This can include written documents, recorded phone calls, text messages. If you had a written contract with him, include this as well.
If this is a case where you have performed services for someone, but have not been paid, then gather together all evidence of the work you performed. In my practice, I require all of my clients to sign a written contract. I also keep an hourly log of all work I have done. Any written work I prepare, I save as a digital file. I also print out most of my written work.
I’ve had clients who despaired because they thought they didn’t have adequate evidence of a breach of contract. If you don’t think you have adequate evidence, you still might be able to recover. Very few people have all of the evidence that they think they need. But, the law says that you may introduce in court any evidence, which makes it more likely that a relevant fact you assert is true, unless there is another law that specifically excludes that evidence. So if you have any evidence of a breach of contract, it should help you.
Step 2: Talk to the other person, and see if there is a way to settle out of court.
Elsewhere (in posts here, here, here, and here) I have encouraged readers to try, if at all possible, to settle cases without going to court. Generally, settling out of court is less expensive, quicker, and less emotionally draining than going to court. Two thousand years ago, Jesus spoke great wisdom when He said, “Come to terms quickly with your accuser while you are on the way to court with him, or your accuser may hand you over to the judge, and the judge to the guard, and you will be thrown into prison. Truly I tell you, you will never get out until you have paid the last penny.” (Matthew 5:25-26)
Many clients think they have no chance of settling, but they end up being pleasantly surprised when they do settle. I tell my clients that if they settle, they will have to give more than they want to give, and take less than they want to take. But so will the other side. However, after having been counsel in over three hundred court cases, I can tell you that the costs of settling are usually less than the cost of going to court (both financially and emotionally.) So I will often counsel clients to accept a settlement that is less than what they really want, just to avoid litigation. Often, if you go to court, you won’t recover everything you want either, so if you settle, you may end up recovering more than you would recover if you went to court.
If you can’t deal with the other party yourself, you may want to hire a lawyer who will try to settle your case for you. In many of my clients’ cases, the situation between my client and the other person had become so emotional that they could not talk between themselves, but a disinterested third party (such as a lawyer) who was not as emotionally invested in the issue, was able to work out an agreement.
One means of settling cases, which has become popular as of late, is mediation. Mediation is where you and the other party (and your attorneys, if you have them) go before a neutral third party called a mediator. The mediator is not like a judge, in that he can’t order either of you to do anything. But a good mediator can try to guide you toward a settlement. For more information on mediation, click on my post here.
Step 3: If all else fails, you may decide you want to go to court.
If you feel you have no option but to go to court, then decide where to file your case. In Oklahoma, if the amount in controversy is less than $10,000, you may file in small claims court. If the amount in controversy is greater than $10,000, then you must file in district court.
The difference between small claims court and district court is that small claims court is simple and designed to operate without lawyers. District court is not simple, and you’ll probably need a lawyer. If you go to small claims court, all you need to do is go to the court clerk’s office and ask for a small claims form. They have pre-printed forms, and you can write in your name, the other party’s name, the amount in controversy, and a brief description of your grievance. The clerk will then give you a hearing date and send notice to the other side. Often, your first hearing will be your last – it will be an informal proceeding, where you present your evidence, the other side presents theirs, and the judge renders a decision. Most people go to small claims court without lawyers. (Many of the popular reality television “court shows” such as Judge Judy and The People’s Court are small claims courts.) Read my earlier post for further information on small claims court.
In district court, the process is more complicated. Generally, both sides have to file multiple written pleadings, and may seek evidence from each other through “discovery.” You usually won’t get a final hearing date until at least a year after you file your case. For more information about civil court in Oklahoma, click here.
If you go to court, you will also need to decide where you want to file. Oklahoma law says that in a breach of contract case, you may file in:
· The county where the defendant lives
· The county where the defendant lived at the time the claim arose, or
· The county where the debt was contracted, or
· The county where the note or other instrument of indebtedness was given.
(There are some special rules for specific types of cases; to see all Oklahoma laws on venue, click here).
In some cases, you may file in federal court rather than state court. Generally, you may file in federal court if:
· The amount in controversy is at least $75,000 AND you and the defendant live in different states
· The case involves a question of federal law
· The federal government, or an agency of the federal government, is a party to the case, or
· You have an admiralty or maritime case.
Need help? Contact the Persaud Law Office
Has someone breached a contract against you? The Persaud Law Office has handled many breach of contract cases. We’ve settled cases out of court, and we have also represented clients in contested litigation. If you would like to speak to a lawyer about your breach of contract case, contact our office today.
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