Top Lines of Attack in Colorado Breach of Contract Litigation

Sep 03, 2019

By: Reed Morris 

RFM4_002.jpgMany inefficiencies in commercial litigation practice can be eliminated by simply focusing on what matters. In our view, it is far too common that lawyers argue (usually with a straight face) that obscure contract defenses are applicable and devote inordinate time and expense on academic questions of fraudulent inducement to enter the contract, duress, or mutual mistake. You can Google “breach of contract defenses” and see what lawyers and law guides say on the topic.

Defenses such as undue influence or fraudulent inducement are alluring, but these defenses usually do not strike at the core of what the typical breach of contract case is about and where the judge or jury’s ultimate decision in your case will turn. Don’t get me wrong. These other defenses exist, and we have seen them succeed in litigation before Colorado juries. But the more obscure contract defenses only exist under highly select fact patterns or with very poorly drafted contracts.

Top Breach of Contract Defenses:

The most critical defenses to breach of contract cases we see as attorneys litigating and trying these cases in courts and arbitrations come down to the four basic elements of proof:

     1)    Was a contract *formed* or not?

     2)    What is *required* of parties under the contract?

     3)    Was the contract *materially* breached?

     4)    What damages were *caused* by the breach of contract?

There is plenty for the lawyers to argue about here in these questions, and where the efficient use of legal resources must be spent in most breach of contract cases.

If your lawyer is spending significant time on issues other than these four areas, take a step back and ask, “Why?” Does your breach of contract case truly turn on something other than one or more of these four questions? Is time spent outside of these four areas simply a distraction or inefficient use of resources?

mlmw_mark_MD.pngReed F. Morris is a Denver-based attorney who regularly represents businesses and individuals in contract disputes and related litigation including employment, partnerships, construction and service agreement disputes. He is a partner at MLMW and parties to contracts in state and federal courts and all alternative dispute venues including mediations and arbitrations (AAA). Reed can be reached for questions at  or by phone at (303) 927-0011 (direct).

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