Civil litigation takes place when two or more parties become embroiled in a legal dispute seeking damages or specific performance as retribution. Types of civil litigation performed by The Daley Law Group include:
o Landlord/tenant disputes
o Product liability lawsuits
o Construction liability lawsuits
o Employment and labor disputes
o Real estate lawsuits
Most civil litigation in which The Daley Law Group performs involves a breach of contract. In order for a case to be viable enough to take before the court, the following must be true:
o The contract is valid.
o The plaintiff can show that the defendant breached the contract.
o The plaintiff did everything required of him/her in the contract.
o The plaintiff has notified the defendant of the breach (best if in writing).
The defendant can and should give reason why the alleged breach is not really a breach of contract. Defenses for this include:
o Fraud. Defendant must provide proof that plaintiff knowingly misrepresented or concealed the truth to induce one to act in his/her own detriment.
o Duress. Defendant must prove that plaintiff compelled by force or threat to sign the document. This invalidates the contract.
o Undue Influence. Defendant must prove that plaintiff used his/her power advantage to force a signature.
o Mistake. The defendant must prove that both parties made a mistake about the subject matter.
o Statute of Limitations. Defendant must show that the statute of limitations has expired.
Remedies for a breach of contract include:
o General Damages. These are actual losses.
o Consequential Damages. This is typically loss of cash flow resulting from the losses.
o Punitive Damages. These are typically tacked on when breach can be proved to be malfeasant (as opposed to the popular Disney Character Malificent!)
o Injunction. Court can use an injunction to require other party to stop an action that is causing damage.
o Rescission. Court can terminate the contract if/when plaintiff has been damaged by the breach.
o Specific Performance. Court can order defendant to carry out what was promised in the original contract.
Before filing a claim for a civil litigation case, it is important to consider the amount of investment it will take to file and make your case. Click the link below to see the fee schedule for Brevard County Clerk of Courts. Small claim’s filing fees start at $55; civil litigation fees can grow as large as $400 or more. Second, attorney fees for writing and defending the complaint in court can add up as well. You can estimate that the minimum of 3 hours will be billed to get a plaintiff to his/her first hearing. In 2012, the average hourly rate for associate attorneys was $370 per hour (Source: ABA Journal). Third, litigation can be time consuming and court dates are mandatory.
If litigation is still warranted, it is best to meet with a couple of attorneys to see who will have the most promising plan for litigation. A good attorney will not be so quick to rack up billable hours, but should attempt a formal demand letter to settle the case before getting the courts involved.