Published February 7th, 2019 by Kai Jacobs

1. Fee Shifting

When it comes to fees for lawyers, the general rule is that everyone pays their own lawyer for whatever work gets done.  But what if you could change that?  You can.  Your contract can expressly provide that any dispute or specified event shifts the burden to pay fees to the other party.  For instance, if you sell peaches in bulk under a written contract, you could include a provision that obligated the buyer to pay your attorneys’ fees in case you have to sue them for payment.  Fee shifting is a very powerful tool both for avoiding legal disputes in the first place and getting them settled more quickly should they erupt.

2. Forum Selection

If you deal with anyone who operates or is found outside of your county (that’s right, county not country), you would be greatly benefitted by having a forum selection clause in all of your contracts.  Generally, if you have to sue someone, where they live is where your lawsuit will be.  That’s not beneficial to you if your peaches buyer lives in Wisconsin or, better yet, in another country.  Forum selection provisions allow you to spell out where any dispute arising under the contract will be heard and handled.  Not only is this a huge savings in time and money to you, but it gives you better control over managing the dispute.  

3. Governing Law

The only thing that might be better than knowing where your dispute will be heard is knowing what law will apply.  Being clear in your contract that the law of your local jurisdiction will govern ensures that the law you operate under day to day will control your dispute and lead to the most predictable outcome.  It will also save you time and money by ensuring, for instance, that a Florida client has Florida law applied by Florida courts in a dispute, instead of a Florida client having to sue in Wisconsin under Wisconsin law to enforce a contract that was not written with the particularities of Wisconsin law in mind.

4. Pre-Suit Mediation

Litigation is unpredictable, which is commonly restated as “The courthouse is not a church.  It’s a casino.”  But disputes are often unavoidable and, sometimes, part of the regular part of doing business.  Why not give yourself the best chance of resolving your dispute right at the beginning before you even go to court?  You can – and you can make it mandatory by including a pre-suit mediation provision in your contract.  With such a provision, the parties would be required to attend a settlement conference presided over by an experienced neutral arbiter who would work with the parties to try and broker a deal to resolve your dispute so that everyone was spared the time and expense of litigation.  Pre-suit mediation is a very effective tool and can save you thousands of dollars in legal expenses.

Do you have questions?  Do you want to know more?  Feel free to set up an appointment and we will be glad to review your business documents.

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