What lawyers look for when you want to litigate a contract

\by Mark Stichel

When signing a contract people focus on the goods or services to be provided, the price, and time that the goods will be delivered or the services performed. Most people do not look at or skim over the boilerplate at the end of the contract.?However, that it the first thing I look for when a client has a contract dispute that he or she wants to litigate.

There are several common provisions among contract boilerplate that can have a significant impact on litigation including those involving arbitration, consent to jurisdiction in a place other than where a party normally could be sued, choice of forum, choice or law, and attorneys’ fees for the party who is successful in litigation.?Arbitration provisions often require that a dispute be submitted to binding arbitration. Although there are benefits to arbitration, there also are downsides such as having to pay up front fees for arbitrators and very limited appeal rights.?A consent to jurisdiction in a distant place if one is sued for an alleged breach of a contract or having to bring a case in a distant place if one wants to sue the other party can have a significant financial impact on the costs of litigation as can a provision providing for attorneys’ fees for the prevailing party. Given that the laws in most states are similar, a choice of law provision usually does not make a big difference, but sometime it can.?For example, in a contract governed by Texas law, the plaintiff who prevails in contract litigation can recover attorneys’ fees even if there is not an explicit attorneys’ fee provision in the contract.?

The courts sometime do not enforce things like arbitration or choice of forum provisions. But, they almost always do.?It is better to be aware of and negotiate these kinds of things upfront rather than fighting them when a dispute arises.?Having to litigate in a distant place and the risk of having to pay the other side’s attorneys’ fees often can be the tail that wags the dog in a dispute.??

Have Trust Will Travel

by Diane S. Kotkin

I was speaking at a seminar recently when the topic of retiring to another state was brought up.?The participant wanted to retire to a sunnier and warmer climate but questioned whether his estate planning documents needed to be updated.?Believe it or not, this is a very common question.?Whether the move is due to retirement, changing jobs, moving closer to family or moving to a jurisdiction with better taxes, we often overlook the legal ramifications of a move. So what should you do?

Clients should update their documents, or at the very least have them reviewed, when they are thinking about making a move.?There are 50 states out there and they all have different laws, especially in terms of how to treat different things that might impact your estate plan.?For example, if you are moving to a state with has higher taxes, you will want to update your documents and explore tax planning.?If you are moving to a jurisdiction where probate is a long complicated process, you may want to create a new estate plan to include a revocable trust.?If you are married, you will also want review your documents to assure that there are no differences in the way marital property is treated. Updating your documents will also show your intent to make that new state your domicile.??

One of the more important documents are Powers of Attorney.?Most powers of attorneys are statutory (created by state laws).?While hospitals and financial institutions in your new state may honor your old POA from your old state, it will delay things as they will have to review them, make sure it is compliant with their laws and scrutinize them on a higher level.?Most doctors, nurses and financial professionals are not going to determine the legality on their own; they will go to legal counsel which will cause further delay.

Finally, moving is a good excuse to consult an estate planning attorney to make sure your estate plan in general is up to date. Other changes in circumstances such as a change in income, children or marital status can also affect your estate plan. In addition, there may be practical changes you will want to make. So, to avoid the hassle, have your documents reviewed and updated by a competent estate planning attorney in your new state.