When can you sue someone for breaking a promise? Obviously, not all promises will be enforced in a court of law. So, what is the difference between a legally enforceable promise and all the many other promises we have been making and keeping or breaking all our lives?
"Reasonable" is a big word in the American legal system. A lot is determined on what the “reasonable person under similar circumstances" should have known or done. This type of reasoning is applied by courts and juries when deciding whether a legally enforceable promise has been broken, also known as a breach of contract, requiring the person who broke it to make it up to the person who was owed the benefit of the promise.
Note: The advice provided here is for general education only. If you think you might be involved in an actual lawsuit, you should meet with a good local lawyer who specializes in your type of case because the laws are different in different states. Also, every lawsuit is different, so each one must be handled differently depending on the facts.
LEGALLY ENFORCEABLE PROMISE
To win a breach of a contract lawsuit, you must first have a legally enforceable promise. The types of promises that are NOT generally enforceable include:
1. Jokes, or promises the reasonable person would not take seriously.
2. Promises made by a minor (someone under 18 years of age in most states).
3. Promises made by a mentally unsound person.
4. Promises for gifts only, when there is no reasonable reliance on the promise resulting in harm to the person to whom the promise is made.
5. Promises to perform illegal acts.
6. Promises to not report alleged wrongful acts to the authorities in exchange for benefits (except for lawful plea bargains by proper government authorities, etc. ).
7. Promises that are not in writing when a writing is required (e. g. , transfer of real property or services that cannot be completed within one year).
8. Promises that are rejected by the person to whom the promise is made.
9. Promises that can't be kept due to acts of God, acts of war, sudden lack of supplies or laborers, or other things beyond the promisor's reasonable control.
10. Promises made in duress or to someone with vastly superior bargaining power, as with most binding arbitration agreements.
So, a legally enforceable promise is a serious promise made by a mentally sound adult to do or not do some legal act in exchange for someone else doing or not doing some legal act (or if nothing was anticipated in exchange for the promise, as in the case of gift promises, but the person receiving the promise reasonably relied on receiving the gift anyway and would be harmed if the promisor is not forced to give it). If you have a legally enforceable promise from someone, what can you do if that person breaks that promise, or breaches the contract?
DECIDE IF A LAWSUIT IS WORTH IT
Lawsuits are expensive-not to mention a huge drain of your time and energy-unless you file in small claims court. Small claims court cases are much cheaper than superior court cases for both the plaintiff (the person doing the suing) and the defendant (the person being sued) because the parties are not allowed to have any attorneys represent them and other rules that simplify the lawsuit process, making the whole thing much cheaper, faster, and easier. But, you also can't sue for as much in a small claims court as you can in a superior court. The maximum limit varies from state to state. For example, the lowest is $1,500 in Kentucky and the highest is $25,000 in Tennessee. In California, the maximum you can sue for in a small claims court is $7,500. Check your state website for any special rules.
Pick your legal battles wisely. If the broken promise cost you a million dollar, then of course you should meet with lawyers to discuss your breach of contract lawsuit. But, if your broken promise made you lose, let's say, $100,000, it can easily cost you $50,000 to push your case through trial for attorneys fees, expert fees, depositions, and many other expenses to finish your trial. And, that cost does not include the interruption to your work or business and personal life that you are likely to experience as a result of the distractions from your lawsuit. Worst of all, you might lose your case and end up having to pay the other side for forcing them to defend themselves against your lawsuit.
HOW TO WIN A BREACH OF CONTRACT LAWSUIT
If you decide that the rewards and likelihood of winning your breach of contract lawsuit outweigh the costs and risks of losing it, then here are some important tips to follow if you want to increase your chances of winning your case.
1. Get a good lawyer. This is not a joke. A good lawyer for your case means one that has many years of experience successfully handling your type of case. Ask trusted family members or friends for referrals. You need a good business litigation lawyer if your case is a business contract dispute; a good entertainment litigation lawyer if your case is an entertainment contract dispute; a good real estate litigation lawyer if your case is a real estate contract dispute; and, so on.
Make sure you like the lawyers you pick. Ask a lot of questions. If they seem too busy or show a lack of interest when you interview them, walk away. You need lawyers who will listen to all of your concerns, answers all of your questions fully, and, especially, return all of your telephone and email messages promptly. Like most relationships, if they are not good to begin with, they are not likely to get better as time passes. You need lawyers who are happy to keep you fully informed of every important development in your case.
When interviewing prospective lawyers, tell them the relevant facts of your case, then ask them these twenty questions:
(1) What are the best legal theories or arguments for my case?
(2) What are the weak points in my case?
(3) What do you think their best defenses will be?
(4) What is the law in our state about these issues in general?
(5) How much do you think this case will cost me through trial?
(6) How much do you think my case is worth?
(7) What are your legal fees?
(8) How many cases like mine have you handled before? What were the results?
(9) If this case goes all the way to trial, will you be the trial attorney?
(10) How many trials have you handled by yourself? What were the results?
(11) Will you handle my case daily or will someone else who is less experienced?
(12) How long do you usually spend preparing your clients for their depositions?
(13) Will you be defending me at my deposition or someone less experienced?
(14) Will you be taking all the depositions we need for this case?
(15) How many depositions do you think we'll need for this case?
(16) What records do you think we'll need to get from third parties for this case?
(17) How often do you communicate with your clients about their cases?
(18) How do you typically handle a case like mine?
(19) What information do you need to answer these questions more fully?
(20) How aggressive is your litigation style?
If they tell you they just can't answer any of those questions without further information, push them for their best estimates. If they still won't answer your questions more fully, that could be a red flag that they either don't have the experience they claim to have or they don't feel comfortable communicating openly with their own clients. Trust your instincts. If you don't get a good feeling from the meeting, thank them for their time and walk out. Getting a good lawyer is 90% of the game. If you have good lawyers, they will do most of the work for you. But, you still have to provide the other 10%, which is your best cooperation.
2. Get your documents, witnesses, and facts straight. When you interview lawyers for your case, take all the relevant documents. Also, make a list of all the important dates, places, locations, and witnesses who can help or hurt your case. The more information you provide to attorneys when you interview them, the better their answers will be to all of your questions. Don't be afraid to make suggestions about how to handle your case. Often, judges and juries give as much weight to common sense arguments as they do to legal theories. Observe how the lawyers react to your suggestions. Again, trust your instincts.
Remember: You always have the right to fire your lawyers if you feel they are not representing you to your complete satisfaction. However, if you're going to fire your lawyers, it's better to do it earlier in your case rather than later because not all the damage that bad lawyers can do to your case can be undone by good lawyers down the road. Plus, you will still owe your prior lawyers for all the legal services they performed and costs they incurred while handling your case.
3. Prepare for Depositions. The most critical part of a lawsuit before trial is the deposition. Give all the information you can about your opponents and witnesses to your lawyers so they can be armed with those facts before they take those depositions. Most importantly, spend all the time you need to prepare for your own deposition.
Know your rights. Learn the law. Protect yourself with the power of knowledge.
Copyright © Shanel Yang
Easy Steps to Success
Shanel Yang shares the Easy Steps to Success that she has distilled after trial and error since 1971, when she came to the U. S. from South Korea with her parents and three younger sisters. Her parents had no education, no marketable skills, knew no English, and only $50 when they landed at LAX with absolutely no idea how they would survive in this new country. The responsibilities were divided between the parents and Shanel like this: The parents earned as much money as they could with odd jobs, like janitorial work in a church, dishwashing in a restaurant, and sewing in a downtown sweatshop, while Shanel learned as much as she could about how to do everything else in this country and taught it to the entire family.
All of that responsibility from such an early age left Shanel with a lifelong desire to help others similarly in need of all the important lessons she had to learn to help her family survive-and eventually thrive-in this great country. She went to UCLA Law School and practiced law for 10 years in Los Angeles. Now, she has begun her second career as a writer to provide self help advice to help others succeed in their lives. Her formula is People, Work, and Money. And, for immigrants who are struggling now as her family once did, she adds English and Law. Shanel believes that success in life can be simple if you focus on people first, work second, and money third. To simplify it further, if you have great relationships-especially the most important one, which is with yourself-the rest will naturally follow. Dare to be awesome! Strive to be your own hero!