The Importance of a Contract Lawyer
Ensuring your business agreements are binding, enforceable, and not contrary to public policy, and that performance is governed by standardized principles and rules, are important reasons to consider hiring a California contract lawyer.
Contract law requires the implementation of various technical legal terms, the layman often has no knowledge of such terms. Contract lawyers can ensure your company is familiar with all the different potential terms and conditions that may be necessary for a valid agreement from a legal perspective. If a contract lawyer is engaged from the beginning of the contract formation process , they can suggest the legal definitions for each term that will provide the best level of protection to the company. Contract lawyers are also trained to apply specific legal defenses to contracts that must be included in the agreement to afford your business protection in the event of a breach or performance dispute. These defenses include the legal definition of contracts, the defenses available for breach of contract and the breach of an implied agreement. A contract formed with the advice of a contract lawyer is less likely to crumple under the weight of a lawsuit than one without.
Contract Law in the State of California
Contract law in California is governed by state law. Since the United States is a common law jurisdiction, contract law is based on judge-made law rather than written laws. Because it is judge-made law, it is dynamic, and courts tend to change their application of the law as time goes on. Different states have different rules that govern contracts, and contract clauses that enforceable in one state may not be enforceable in another.
The general requirements for a valid contract in California are that the parties to the contract must have the capacity to enter into a contract, that there must be an offer and an acceptance, that the parties must agree to the material provisions of the contract, and that there must be consideration. In California, the parties cannot agree to an agreement to agree, or a "pre-nup" in which the parties agree to discuss the material terms of an agreement at a certain date in the future and then agree. Rather, the material provisions must be agreed upon at the time that the agreement is made.
The California statutes of frauds require that certain contracts be in writing in order to be enforced. These contracts include contracts for the sale of real property, contracts that cannot be performed within one year, contracts with an executor or administrator of an estate, contracts that make a person responsible for another’s debt, contracts to pay an agent’s commission, and contracts to sell or lease goods valued over $500.
California has an "implied in fact" contract law, which means that there is a contract when the parties manifest an agreement, but not in words or writing, as opposed to an "implied in law" contract, when parties would have reached an agreement, if only they had discussed the subject.
Searching for The Right Contract Lawyer
When searching for a competent contract lawyer in California, there are several key qualities and qualifications that you should consider. First and foremost, you want an attorney with plenty of experience handling the specific types of contracts or contract disputes that pertain to your particular legal issue. This experience should include many years in practice as well as a wide variety of experiences within your practice area. Rather than a jack of all trades approach, an attorney that specializes in each individual field of law is likely to have a wider breadth of knowledge regarding how contract law applies in certain situations and how to remedy issues that may arise during contract negotiation, agreement, or execution.
In addition to experience, you should also consider the area of specialization that a particular attorney may have and whether it relates to your case. For example, if you need a contract lawyer to draft a business agreement, you will want to speak with an attorney that specializes primarily in business law, rather than employment law or even real estate law. Although contract lawyers often have a background in many different areas, you will be best served by hiring an attorney specializing in the type of contractual matter that pertains to your case.
Finally, consider reputation as well. There are many ways in which you can determine the overall reputation of an attorney, not the least of which are within your personal network (friends, family, or colleagues) as well as a search of the State Bar of California to see whether that individual is licensed and has had any disciplinary action taken against him or her. In addition, there are several online rating systems for attorneys that can give you a sense of the quality of an attorney as well as their professional reputation.
How To Locate a Contract Lawyer in California
To find the right contract lawyer in California, you can use a combination of online and offline resources.
One of the best places to start is the California State Bar Lawyer Referral Directory. The directory is a free online resource that will connect you with lawyers based on your specific needs, including their area of focus, your budget and your preferred location. The online directory allows you to search for lawyers in your zip code by narrowing down your search by practice area. In your case, you might search using "Contracts" as the primary practice area. From this list, you’ll look for lawyers who are located in your area and that offer a free consultation. You can also search by geographical area to discover lawyers in the area. (If you’re not sure what your needs are, then searching by region may be the better option to determine who might be able to help you.)
Another good option for finding a lawyer in California is Avvo. Not only does Avvo offer reviews and ratings for lawyers in your area, but it also has a comprehensive lawyer directory that can help you narrow down your search for someone who meets your needs. Similar to the California State Bar Lawyer directory, you can search by zip code to find some qualified candidates. You can also narrow down your search even more by choosing primary and additional practice areas, and you can read reviews from other clients and even ask legal questions.
Referrals from family or friends who have gone through the same experience can also be a valuable resource. Sometimes those closest to you will know someone who has worked with a qualified contract lawyer in the past, or they may even have had a positive experience with one themselves. To obtain referrals, ask your social network – family and friends – if they know anyone who can help. You can also consult with professional colleagues for any leads. If you have worked with a stranger in the past, reach out to them again for recommendations. Your former accountant may remember working with a contract lawyer for a business deal, and your former accountant’s lawyer may remember working with a contract lawyer for his or her own estate plan or other family business.
Word of mouth is one of the best ways to find a strong contract lawyer in California. Referrals and recommendations will help you to find a lawyer that is both qualified and within your network, making it easier to set up a consultation. Avoid hiring a contract lawyer based only on his or her popularity or reputation. Even if a contract lawyer is highly rated by one of the review sites like Avvo, they may not be the right choice for your case. You want a contract lawyer who meets your unique needs, which may require you to conduct further research into options provided by the directory. Make a list of your top candidates to interview before making a decision.
Most Common Contract Disputes and the Need for Legal Help
Common contract disputes in California generally fall into one of two categories: breach of contract actions, or actions on Notes and Guarantees. Since the law of contracts is very well established in California, most contract actions do not typically involve novel legal issues.
Breach of Contract Actions
A simple breach of contract action involves a breach by either a promisor or a promisee. The breach could be the failure or refusal by either party to perform their obligations under the contract or the performance of the contractual obligation but not in the manner, quality or quantity required under the agreement. For example, a general contractor’s construction defects in a building could give rise to a breach of contract action by the building owner for damages allegedly caused by the defective work. Most breach of contract actions are for money damages.
The party that suffers from the breach could be entitled to recover compensatory damages with the goal to put the injured party back in the position they would have been had the contract been properly performed by the breaching party. Punitive or consequential damages are not typically awarded in contract disputes, unless it can be shown that they were within the reasonable contemplation of the parties at the time the contract was entered into, or those damages flow from a tort that is independent from the contract breach. The injured party can also seek injunctive relief to either compel or restrain an action by the breaching party.
Actions on Notes and Guarantees
An action on a Note typically involves a party that fails or refuses to pay an instrument based upon a promise , thereby causing harm to the lender. An action on a Guarantee is similar to an action on a Note in that a party seeks the collection of a sum due on a loan from a guarantor. In California, a Guarantor can be sued without an action first being lodged against the primary obligor. In addition, if the debt is not paid by the primary obligor, the Guarantor of the debt is liable for the debt upon default of the primary obligor. In other words, the Guarantor’s obligation to pay the debt does not arise until the principal debtor fails to pay.
Creditors often rely on a personal or corporate guarantee in making business decisions. A guaranty has different rights, such as subrogation and preferential payments, than Creditors would have had against the Principal Debtor. Substitution occurs when a person or entity (Guarantor) pays the debt of the Principal Debtor which was originally the responsibility of another person or entity (Principal Debtor). If the Creditor owes the Guarantor a certain amount, the Guarantor will be entitled to the amount paid by the Creditor to the obligee. The person or entity (Guarantor) then acquires the rights, remedies, privileges or powers of the Creditor. Under most circumstances, a creditor must exhaust all legal avenues to recover on a debt before it can proceed against the Guarantor. A Guarantor may have equitable defenses to prevent the collection by the Creditor if the Guarantor can show that the Principal Debtor has been harmed by the actions of the Creditor. The Guarantor may assert any equitable defense against the Principal Debtor, i.e. no consideration was given to the Principal Debtor in exchange for the execution of the Guaranty.
Hiring a Contract Lawyer in California Financially
While the cost of hiring a contract lawyer may vary across the state of California, there are some general guidelines to keep in mind as you plan your budget. As with most things, the complexity of your case and the level of required expertise will influence the amount you can expect to pay for legal assistance. A contract lawyer in the State of California typically charges anywhere between $50-$400 per hour, although the median hourly rate is around $150. This is lower than the average hourly rate for many other types of lawyers in California; averages directly related to a specific field of law generally range from $300 to $500 per hour. If you are hiring a contract lawyer who specializes in a different field, such as real estate, employment or family law, you may want to consider enlisting the services of another attorney with a more appropriate background, as the former will certainly still charge you their standard rate. Experience levels can range dramatically. For entry-level contract lawyers, especially those who work at legal firms, hourly rates will typically fall within the $50-$100 range. Mid-range contract lawyers with 3-6 years of experience may charge anywhere from $100-$250. Above this range are contract lawyers with 6-9 years of experience ($200-$300) and 9+ years ($300+). Rates of specific contract lawyers, of course, depend upon the quality of their work and reputation as a legal professional, so these ranges are not set in stone. Hiring a contract lawyer at a firm will usually be more expensive than hiring a contract lawyer who works independently. Firm rates can range anywhere from $165+ an hour, again depending upon the level of the contract lawyer you hire, with litigation experts and outfitting specialists costing substantially more.
Contract Lawyer FAQs in California
Do I need a contract lawyer in California?
It depends on your particular need and whether there are any potential legal issues regarding the contract you have created. A contract lawyer specializes in contract law and has specific experience practicing in this area. For complicated contracts or legal proceedings, it is best to hire a contract lawyer.
What does a contract lawyer do?
A contract lawyer may help you draft a contract or review any contracts related to your business. A contract lawyer may also be helpful if you have violated a contract or an agreement and are facing legal action or you are being sued by another party. A contract lawyer will be able to review these contracts and make appropriate suggestions. The contract lawyer can also represent you in any legal proceedings to prove that you did not violate any contracts or agreements.
Can I write my own contract?
While no law prohibits you from writing your own contract, it is not recommended . Legalese is often very complicated and people who do not have the appropriate training in legal matters, such as contract law, often overlook important details. Any omission in the contract may come back to haunt you in the future. It is always best to have an attorney review the contract.
What is the difference between a contract lawyer and a business lawyer?
A contract lawyer is a type of business attorney that focuses primarily on contract law. A business lawyer covers a variety of issues including business formation, business disputes, business dissolution, and mergers and acquisitions. If you have a business-related legal issue that is not contract-related, then you need to hire a business lawyer. You may need a specialized business lawyer if your legal issue does not fall under any other category of business law. Some business lawyers may be able to cover both types of issues.