Why Contract Drafting is Essential to Avoiding Costly Litigation

By Clifford A. Taylor, Esq.

Contract litigation could cost tens of thousands of dollars of attorney fees and court costs. These fees may even exceed any loss that you suffer caused by your offending contract partner. Even if your contract specifies that the prevailing party (the party that recovers a judgment) will be awarded attorney fees, you may be denied attorney fees if the court determines that you had also breached the contract, even if you win a monetary judgment. If the court determines that your breach is significant, you may not even be able to recover what is owed to you. Marshall Const., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845 (Fla. 1st DCA 1990). When the court weighs the breaches by both parties, the court is exercising its discretion and in so doing, may determine that each party shall bear its own attorney fees and costs. Brevard County Fair Assoc. v. CoCo Expo, Inc., 832 So.2d 147 (5th DCA 2002), see also Animal Wrappers & Doggie Wrappers, Inc., v. Courtyard Distribution Ctr., Inc., 73 So. 3d 354 (Fla. 4th DCA 2011). The law regarding attorney fees may differ within Florida until the Florida Supreme Court weighs in resolving the differences between competing District Courts of Appeal.

Most of the time a prevailing party will be awarded pre-judgement interest from the date it is owed. Pre-judgment interest may be a significant loss if the litigation takes years to finish. Again, the trial judge may exercise discretion in not awarding pre-judgment interest depending on which District Court of Appeal you file the lawsuit in. See Kissimmee Util. Auth. v. Better Plastics, Inc., 526 So.2d 46 (Fla. 1988).

How does one avoid these potential traps? The answer is by having an experienced attorney assist in drafting your contract. By carefully wording your contract you can: (a) avoid being accused of breaching your own contract, and; (b) select the correct jurisdiction to bring your lawsuit to make sure you collect any pre-judgement interest and/or attorney fees that may be due and owing.