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What can be recovered with breach of contract and is it usually done on contingency?

Dallas, TX |

Don't quite understand how breach of contract works. Trying to figure out rather this is worth pursuing or not. With this kind of lawsuit can you recover more than just the fee already paid and do most attorneys take it on contingency?

I guess I need to add this breach of contract has to do with an attorney, that was why I mentioned the fee already paid.

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Attorney answers 4

Posted

Contract damages are those to put you in the position would have been if the contract would not have been breached. These are called compensatory damages. Purely contract claims do not generally qualify for punitive damages. I don't know what you mean by the "fee already' paid.

Most attorneys do not take contract matters on contingency unless the debt is secured and it is otherwise absolutely clear they can both win the case and then collect. Contingency is not common because the value of the damages may be low and even if you do win you still have to collect. The judgment debtor can file bankruptcy or just otherwise avoid paying. A contract claim is radically different than say, for example, auto accident litigation. In auto litigation the at-fault driver is usually rather clear and, because of insurance, it all but certain the attorney will get paid. This is not remotely similar to a contract claim.

Speak with a local litigation attorney and they can give you an idea if this case makes any sense and for an idea of the cost.

This answer is for informational purposes only and is not legal advice regarding your question and does not establish an attorney-client relationship.

Asker

Posted

This breach of contract has to do with an attorney. They clearly neglected their duties. Fees were paid to them in order to file Motions and Notices which we were told were filed, but we know now they were never filed with the court. That was what "fee already paid" meant.

Robert John Murillo

Robert John Murillo

Posted

That makes the issue radically different. An attorney breach is both may implicate contract, negligence, and fiduciary duty. If the attorney did not file as required and, moreover, lied about that, that is also a breach of ethical duties. I strongly recommend that you speak with an attorney who specializes in attorney malpractice claims. Also, you should fire this attorney and seek new counsel. Finally, you may want to contact your state regulation counsel and they may open a case for breach of ethical duties. Good luck.

Robert John Murillo

Robert John Murillo

Posted

To clarify, speak with another attorney about the current case. You normally can substitute counsel fairly easily. It is important to speak with an attorney as there may be time and other issues that need to be addressed. Again, good luck.

Asker

Posted

Thank you, we have retained another attorney to take care of our case but he does not do breach of contract. As for legal malpractice we have been told that the suit can not be brought until the open case is closed and I don't know how long that will be. We pretty much have to start all over again because of the 1st attorney.

Robert John Murillo

Robert John Murillo

Posted

Sorry about the problems. I don't practice malpractice law and, as usual, this varies by state.

Posted

In Texas, a breach of contract permits the non-breaching party to recover actual damages (such as the money paid), consequential and incidental damages (damages that are a foreseeable consequence of the breach), and reasonable and necessary attorney's fees. Depending on the facts, you may also be able to make a claim under the Texas Deceptive Trade Practices Act which permits recovery of treble damages in certain circumstances.

Depending on how much money is at issue, attorneys may be willing to accept a breach of contract case on a contingency basis, but there are other options as well (such as a contingent hybrid agreement). I have put a few links below that may help explain this a bit more.

I encourage you to reach out an attorney about your case.

Posted

In general, breach of contract entitles you to any damages you suffered as a result of the breach. In some cases, you can also get "specific performance", meaning compelling the other party to perform their side of the contract. Other remedies may be appropriate depending on the facts of the case and the nature of the contract.

Texas law allows parties to recover attorneys fees for breach of contract claims. Whether a particular attorney will choose to take the case on a contingency is very much going to depend on the case, the clients, the other party, and the attorney himself or herself. If I had to hazard a guess, I would say that most breach of contract cases involving commercial clients are not contingent. But, many cases involving individual consumers and small businesses are contingent because the client may not be able to afford the services otherwise.

In some cases, the attorney may agree to a reduced fee or a partial contingency fee.

The contingency would not typically be a straight percentage fee (like 40% of the damages), but would instead be hourly. Depending on the size of the damages at issue, sometimes the attorneys fees greatly exceed the amount in dispute between the parties.

You should take your particular situation to an attorney who practices in the legal area concerning your contract and get further information and get advice particular to your case and situation.

I am licensed only in Texas. Offering information of a general nature in response to a question is not intended to be legal advice in your state.

Posted

Whether or not an attorney would take a case on a contingency depends on the likelihood that you would prevail, the amount in controversy, and a number of other factors. Chasing the recovery of just your fee probably would not be enough to motivate an attorney to take the case. For example, if your fee was $10,000, and the new attorney had a 40% contingency, that would be only $4,000. Not a lot of litigation can occur for that amount of money. But you can negotiate the fee and the associated services. Perhaps you would agree to have a new attorney write a demand letter to see if the old attorney would refund the fee that you paid.

You may consider seeking help from the Dallas Bar Association fee dispute committee. You can review the web site at the following link:

Dallas Bar Association - Fee Disputes
http://www.dallasbar.org/node/88

Good luck.