Solana Beach Lawyer - Contract Law...Get it in Writing!

I get calls all the time for let’s say a car accident where people say how do I get my attorney’s fees paid for, well you don't. And then I have other people call me and say well I have this oral agreement with somebody and I want to get my attorney's fees paid for - you can't get it. California only allows for recovery of attorney's fees if it’s in writing, between the parties, so whether it’s a formal contract or not it almost doesn't matter. If you have a relationship with somebody, where there might be some obligations between the two of you, if you don't put it in writing that the prevailing party will be entitled to recover attorney’s fees cost you're not going to get it.

Let’s say you have a $4000 oral contract with somebody and you are owed that money and you don't have it in writing that you're going to get your attorney’s fees paid for. The only recourse you’re going to have is to sue, but every penny spent on a lawyer is money out of your pocket, you’ll never get that back. You can go to small claims court but what if you are owed $16,000 or something more than the small claim? A lawyer will eat that up. It's not going to be in your best interest and the person who owes the money will know that and they might hold out. So, an important clause in every written contract, where you might be the one wanting to sue for recovery is the attorney’s fees clause.

I write contracts for people who are owing the money, and I might intentionally want to keep the attorney’s fees out of that contract just to benefit my client, because if we owe the money and the other person has to sue us well if they don't have attorney's fee clause that’s their problem, not ours.

Another really important clause to be aware of is when you enter into a contract to know whether there is an arbitration clause. An arbitration clause is where you are signing away your right to a jury or civil case. You have to go into arbitration. You may not want that, although many medical contracts or healthcare contracts have those. They send you to their own panel of arbitrators and you are literally signing away your constitutional rights. It’s not that it’s right or wrong or good or bad for you, it just may be something you don't want but you need to be aware of it.

Another very important clause is a venue clause. A venue clause is where that case is going to be litigated if there is a problem. I can't tell you how many times I have had calls from friends and family and clients here in San Diego, who have entered into contracts and the venue is going be Minneapolis Minnesota, or somewhere out of state, or somewhere out of the county. If you have to sue, even if you’re right and entitled to all the money, you can’t do it here. You have to hire a lawyer in another state so be aware of that before you get into the contract, and you may want something like that in the contracts that you have your partners sign. As long as the parties involved have a meeting of the minds about what’s in that contract, it more likely will be enforceable. Being aware of those things going on is going to be important so you can protect yourself. We do this. Again, we litigate them and we write them so we know what to look for.