A complaint is the document the plaintiff files with the court to start a lawsuit. It will lay out who the parties to the case are, whether the plaintiff wants a jury trial, why the court has jurisdiction to hear and decide the case, what the facts of the case are, what the cause of action is, and what remedy is sought.It is incredibly important to read the complaint so you have an idea of what claims are being made against you and how you might proceed.


In a breach of contract suit, the plaintiff's complaint will likely allege that there was a valid contract, that the contingencies within the contract were fulfilled, and that you failed to buy or sell the property according to the terms of the agreement. The plaintiff will lay out facts that he or she thinks support their contentions. They will also lay out the law of breach of contract, which is generally made by state court judges in legal opinions.
The complaint will also ask the court for some sort of relief. In a breach of contract case involving real property, the remedies available might include specific performance (i.e., the court will make you perform under the contract), money damages, and/or cancellation of the contract.;
, As soon as you read the complaint, you need to find a copy of the purchase and sale agreement and read it over carefully. Compare the agreement to the plaintiff's statements in the complaint. This exercise will help you find potential shortcomings or false statements in the plaintiff's complaint.


Specifically, look at the statement of facts in the complaint and make sure it matches up with the contract as it is written. For example, if the plaintiff stated there were only three contingencies in the contract (e.g., buyer financing, property inspection, and the sale of buyer's home), but you see an additional contingency (e.g., title review), make a note of this.
You also want to look at any damage or breach clauses the contract may have. For example, the purchase and sale agreement might require parties to arbitrate their claims before bringing a lawsuit. Additionally, the contract may have a liquidated damages provision (i.e., a provision that lays out what the agreed upon damages for a breach will be) that does not match the damages request in the complaint.
 The purchase and sale agreement is not the only piece of evidence that will be important to your case. Any email, letter, phone conversation, contract amendment, or anything else about the deal should be reviewed as well. This information can help you fill in the factual gaps and inconsistencies you may find in the plaintiff's complaint. This information is very important as it might evidence a breach by plaintiff, the existence of an outstanding contingency, or the existence of an impropriety such as fraud or duress.


For example, you might have emails sent between yourself and the plaintiff stating the plaintiff no longer wishes to buy or sell the property to you. You could use this email as evidence of why you stopped performing under the contract.
In addition, you might have notes from a phone conversation where the plaintiff threatened you into signing and performing under the contract.
 In a lawsuit for breach of contract, your first line of defense should be procedural. Procedural defenses attempt to stop the litigation by alleging the plaintiff failed to properly bring the lawsuit against you. These defenses have little to do with the content of the case and have more to do with court procedures and rules.


For example, you might be able to argue the statute of limitations has run on the claim and therefore the case should be dismissed with prejudice (i.e., the plaintiff should not be able to refile). Statutes of limitations set deadlines within which lawsuits must be brought. If the statute of limitations has run (i.e., the deadline to file has passed), it is presumed the evidence and witnesses are no longer reliable. In California, the statute of limitations for a written contract is four years from the date of breach.You might also be able to argue that the plaintiff filed his or her case in a court that lacks proper jurisdiction.To hear a case, a court must have jurisdiction over you personally and over the subject matter of the case. If either of these things are missing, the case can be dismissed because the court will be unable to hear and rule on the claims. However, these defenses are usually not fatal to a lawsuit. If a court dismisses a case for lack of personal and/or subject matter jurisdiction, it is usually dismissed without prejudice. The plaintiff will usually have an opportunity to refile their case in the proper court.
 Regardless of whether you have any valid procedural defenses, you will also want to think about any affirmative defenses you might be able to raise. Affirmative defenses do not contest the existence of a contract or possibly that there was even a breach. Instead, affirmative defenses assert that additional facts or circumstances render the plaintiff's claims inactionable.Look through any materials you have to help you determine if you could make any of the following arguments:The contract was invalid or illegal. Examples of possible claims include the existence of fraud, lack of acceptance, rescission, lack of capacity to contract, or impossibility.
You have a valid excuse for not performing. For example, you might make a claim of anticipatory repudiation (e.g., the plaintiff told you he or she was not going to perform so you stopped performing as well) or failure to comply with a condition (e.g., the plaintiff did not do something he or she was required to do before you were to perform under the contract).
A statute of frauds defense. The statute of frauds helps prevent fraudulent contracts by requiring certain types of contracts, including contracts for the purchase and sale of real property, to be in writing in order to be enforceable. If you make this claim, you are saying there was an oral contract and it is invalid because it needed to be in writing.
 Damage defenses can help you reduce the amount of money you owe even if you are found liable for breach of contract. These arguments should be made as an alternative to other defenses you raise. The most common damage defenses include:A failure to mitigate damages. If you make this argument, you are saying plaintiff is not entitled to interest or legal fees in the amount he or she claims because they allowed them to add up unnecessarily. You might argue the plaintiff refused a reasonable settlement or failed to take prompt action to fix the breach.
A failure to accurately calculate damages. Here you are saying the plaintiff didn't take account of payments you already made under the contract or that plaintiff agreed to take less money.
 Before you formally respond to the plaintiff's breach of contract lawsuit, you will want to hire a qualified lawyer. Going to court and defending against a lawsuit can be complex and outcomes can affect your financial and personal wellbeing. Therefore, it is important to hire a lawyer so he or she can help you defend and assert your rights. To find a qualified contracts lawyer, contact your state bar association's lawyer referral service. After answering a few general questions, you will be put in touch with qualified lawyers in your area.


When you meet with possible candidates, be sure you ask about their experience handling real estate contracts and defending against breach claims in court. A lot of contracts lawyers will be purely transactional, which means they will write contracts but not litigate them. You need to find a lawyer who litigates and defends contract claims in court.
Before making a hire, ask the lawyer about their fee structure and how they will be paid. Make sure you feel comfortable with the arrangement before hiring someone.
 An answer is your formal response to the plaintiff's complaint. This answer will be filed in court and needs to respond to each allegation the plaintiff made. In addition, your answer will set out all of the defenses you plan on making throughout litigation.


When you respond to each of the plaintiff's allegations, you will number your paragraphs in the same manner the plaintiff did. Therefore, your response to the plaintiff's allegation in paragraph seven of the complaint will be in paragraph seven of your answer. Your response will always be to admit, deny, or state you do not have enough information to admit or deny.
Your answer will conclude with a discussion of all the defenses you want to raise. Go through all of your procedural, affirmative, and damage defenses you found while preparing your defense. Make sure you raise every defense at this stage because certain defenses are waived (i.e., you will not be able to bring up those defenses later) if they are not contained in the answer., Your answer might also include a counterclaim, which is a claim that you have against the plaintiff for something arising out of the same transaction stated in the complaint. Your counterclaim must be asserted in your answer or it will be waived.


One of the most common examples of a counterclaim in a breach of contract case is that the plaintiff was actually the party to breach the contract.If there are facts to support it, you might claim that plaintiff changed the terms of the contract without your consent, failed to include valid amendments to the contract, or that plaintiff breached the implied warranty of good faith and fair dealing (i.e., the plaintiff acted unreasonably in performing under the contract)., Once your answer has been prepared, you must serve it on the plaintiff and/or their attorney. You must hire someone 18 or older who is unrelated to the case to serve the plaintiff for you. Service can generally be completed by having the server personally hand a copy of your answer to the plaintiff or their attorney, or by having the server send a copy of the answer through the mail.


In either scenario, once service has been completed, the server must fill out a proof of service form. This form requires the server to promise that he or she served the correct party in the correct manner. Once the server fills out this form, he or she must return it to you. You will submit this form to the court along with your answer., Your answer and proof of service must be filed within a certain time frame, which is measured from the day you are served with plaintiff's complaint. For example, in federal court, you generally have 21 days to respond and file your answer. If you fail to file your answer in time, the plaintiff may win the case by default.


To file your answer and proof of service, take your originals to the courthouse where the plaintiff filed the case. You will give your documents to the clerk of courts who will stamp your paperwork as "filed." Be sure you find out ahead of time if your judge or court requires you to file additional copies. If they do, make sure you bring the correct amount of copies with you to be filed along with the originals., Soon after your answer is filed you will start a period of discovery. During discovery, you and the plaintiff will exchange information in order to learn more about the case and prepare for trial. You will be able to collect facts, interview witnesses, find out what the other side is going to say at trial, and see how good your case is. To help you through the discovery process, you will be able to use any of the following tools:Informal discovery, which includes conducting interviews, gathering publicly available documents, and taking photographs.
Depositions, which are formal in-person interviews with witnesses and parties. The answers are given under oath and can be used in court.
Interrogatories, which are formal written questions posed to witnesses and parties. The answers are written under oath and can be used in court.
Requests for documents, which are written requests to the plaintiff asking for specific documents. This tool is used to obtain documents that are not publicly available. Examples might include phone records, text messages, emails, and internal memos.
Requests for admissions, which are written statements that the plaintiff must admit or deny. This helps you focus your case on what is truly in dispute. Answers can be used in court.
 As soon as discovery concludes, review the information you obtained and consider making a motion for summary judgment. A motion for summary judgment asks the court to end the litigation and rule in your favor on the theory there is no genuine dispute of material facts and that you are entitled to judgment as a matter of law. In other words, you will have to persuade the court that, even if all factual assumptions were made in plaintiff's favor, he or she would still lose the court case. You can strengthen your motion by attaching evidence and affidavits.


If successful, the court might rule in your favor on the whole case or on pieces of it.
If unsuccessful, the litigation will continue., If your motion for summary judgment does not end the litigation completely, you might consider settling with the plaintiff. At this point in the litigation, you and the plaintiff will likely have a good idea about the strength of the case and what the outcome might be. Litigating a case completely and going through trial is an expensive and time consuming proposition. Settling might end up saving both parties time and money.


Start by making an informal offer to sit down and negotiate. If these informal settlement negotiations do not resolve the issue, you might request a more formal alternative dispute resolution response.
Your second settlement option is to take part in mediation. During mediation, a neutral third party will sit down with both sides and attempt to find common ground. The mediator will not take sides or voice his or her own opinions.
Your final settlement option is usually arbitration. During arbitration, a judge-like third party will hear both parties arguments and will draft an opinion based on his or her findings. The arbitrator will voice his or her opinions and will take sides.
 If settlement discussions break down you need to prepare for trial. Apart from gathering evidence, preparing witnesses, and reading up on the rules of evidence, you will take part in one final pretrial conference. During this conference, you and the plaintiff will sit with the judge and prepare a trial schedule and timeline. The resulting trial order will be binding on both parties and you will be required to follow it.


Therefore, it is very important to bring up every issue that you want to raise at trial. If you fail to bring up an issue at this conference and it doesn't make it on the trial schedule, you might not be able to raise it at all., Your part of the trial will start after the plaintiff presents his or her opening statement. At that point, you will be allowed to make your opening statement to the court. In some jurisdictions, you might be able to hold your opening statement until after the plaintiff has presented his or her evidence. In either situation, your opening statement is a chance to tell the court a story. You will not present any evidence or discuss the law. This is your opportunity to frame the case in your favor, introduce the main issues, discuss the important facts, and tell the court what you intend to prove., After your opening statement, the plaintiff will present his or her case-in-chief. During this presentation, the plaintiff will introduce evidence through witness testimony and physical exhibits. After the plaintiff questions each witness, you will have an opportunity to cross-examine them.


During cross-examination, ask questions about the matters discussed during direct examination. You can ask both leading and non-leading questions during cross examination. The purpose of your questions should be to discredit the witness's testimony to help your case., Once the plaintiff has presented his or her entire case it will be your turn. When you present evidence through witness testimony and physical exhibits, you must follow certain rules in order to ensure your evidence is admissible. These rules, the rules of evidence, can be found in most law libraries and even online.


When you question your own witness you can only ask non-leading questions. In other words, you can't imply the answer in the question. The purpose of direct examination is to have the witness tell the court facts about the case that help prove your point., After all the evidence has been presented, both parties will have one final opportunity to address the court. The plaintiff will make his or her closing arguments first. Once they are done, you will have an opportunity to go. During closing arguments you should summarize the evidence that was presented, explain why the evidence is relevant, and explain why the evidence requires them to find in your favor.


Be careful not to include your own personal opinions about the facts or the law as that is not allowed., At this point the trial is complete and the judge or jury will be left alone to make a decision. Once the judge or jury reaches a decision in your case, you will be called back into court to hear the verdict. The judge will read the verdict out loud and the trial will conclude.If you win, judgment will be entered in your favor and you will not be required to pay damages, specifically perform under the contract, or cancel the contract depending on the damages the plaintiff sought.
If you lose, judgment will be entered in the plaintiff's favor and you will be required to pay damages, perform under the contract, or cancel the contract. If you do not agree with the decision at trial, you may be able to appeal. If you want to appeal, discuss your options with your attorney.
Read the complaint.
Find the agreement in dispute.
Review correspondence with the plaintiff.
Identify procedural defenses.
Research affirmative defenses.
Investigate damage defenses.
Hire a lawyer.
Draft your answer.
Make a counterclaim.
Serve the plaintiff.
File your answer.
Engage in discovery.
File a motion for summary judgment.
Attempt to settle.
Attend the final pretrial conference.
Give an opening statement.
Cross-examine the plaintiff's witnesses.
Present your case-in-chief.
Make a closing argument.
Await the verdict.
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