Mark P Henriques Vivian Coates November 12 2015 What we will cover An Ounce of Prevention Key issues to address in the contract Things are Heating Up Responding to claims of breach Call to Battle ID: 644202
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Slide1
Winning Contract Disputes
Mark P. HenriquesVivian CoatesNovember 12, 2015Slide2
What we will cover
An Ounce of Prevention: Key issues to address in the contractThings are Heating Up: Responding to claims of breachCall to Battle: Dispute resolution considerationsSlide3
Hypothetical
You are asked to help draft and negotiate a contract for a custom software solution. Slide4
Best Practice
Research the other sideSlide5
Research before you sign
Check financialsCheck with prior customers On-line searchesSlide6
Drafting the Contract
Key provisionsDefine work product / deliverableDefine acceptance / when payment due
Venue/Choice of Law
Dispute resolution
Ownership of work product
Ambiguous provisions will usually be construed
against
the drafterSlide7
Payment Terms
TypesTime and MaterialsPayment based on hourly work at a contracted ratesDeliverablesPayment based on completed work productFixed price
Payment not to exceed contracted priceSlide8
Defining Performance
Clarity is key - if you do not understand what is being done, neither will a juryUse specific performance measuresAddress timing issuesAnticipate problems and disputes Slide9
Use of Subcontractors
Inform Client of all subcontractorsGet contracts with all subcontractorsClearly identify the organizational structure to client and subcontractorsSlide10
Change Management
Document deviationsSlide11
Managing Change
Get it in writingSave all correspondence Establish and follow contractual languageCommunicate changes with your teamUpdate scope documents and timelinesSlide12
Dispute Resolution
Arbitration?AAAJAMSOther1 arbitrator or three?
Litigation?
Business Leader meeting?
Mediation?Slide13
Forum Selection
Choice of LawNegligenceStatutes of LimitationVenueLocationCourt (Federal, State or Business)Slide14
Things are Heating Up
Contractor gets behind on payment and owes more than $1 million. When you attempt to discuss the invoices, they claim you have not provided any useable work-product.Slide15
Best Practice
Contact litigation counsel when relationship becomes hostileSlide16
Role of Legal Counsel
Possible negotiation of paymentAssist with making sure termination provisions of contract are followed
Notices of Breach/Payment Demands
Prepare for possible litigation Slide17
Best Practice
Contact litigation counsel when relationship becomes hostileKeep records and begin gathering supporting documentsSlide18
Litigation Hold
Implement a litigation holdImmediate stop of deletion of email and other electronic documentsNotify employees and gather documentationSlide19
Termination Options
Review contract provisionsPros and cons of terminationNeed for claritySlide20
Proceeding to Litigation
What form of dispute resolution?What will it cost?How long will it take?What lawyers do I need?Do I have buy-in from the business?Slide21
Early Case Assessment
What is it?How does it work?Using ECA to establish a case management strategySlide22
Possible Claims
Breach of ContractBreach of Warranty (especially UCC)Quantum Meruit / Unjust EnrichmentUnfair Trade PracticesMisrepresentationOther Statutory ClaimsSlide23
Possible Defenses
Lack of ConsiderationLack of PrivityStatute of FraudsStatute of LimitationsAccord and SatisfactionEconomic Loss RuleSlide24
Importance of Following these Tips
Chances of success in litigation are improvedIncrease ability to defend claimsIncrease ability to pursue affirmative claims including collection of past due invoices Slide25
QUESTIONS?
Mark P. HenriquesVivian Coates
Womble Carlyle Sandridge & Rice, LLP