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Winning Contract Disputes Winning Contract Disputes

Winning Contract Disputes - PowerPoint Presentation

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Uploaded On 2018-03-09

Winning Contract Disputes - PPT Presentation

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

work litigation payment contract litigation work contract payment resolution claims dispute business counsel product practice key case choice contracted

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Presentation Transcript

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