Contract Disputes: The Pre-Suit Checklist

Conditions precedent — the trapdoors

• Comply with the notice clause to the letter. Method (certified mail? email permitted?), recipient (the notice address from the contract, not your day-to-day contact), and content. Courts enforce these mechanically, and “they obviously knew” is not compliance.
• Run the cure period — fully and visibly. If the contract gives 30 days to cure, the clock matters twice: you must give it before terminating, and their cure attempt (or silence) becomes evidence. Terminating on day 22 hands them the breach claim.
• Follow the escalation ladder. Executive conference, then mediation, then arbitration or suit — in that order, with the waiting periods observed and documented. Skipping a rung invites a motion to dismiss or stay that costs months.
• Check for industry-specific deadlines. Construction lien and bond deadlines, UCC notice-of-breach requirements for accepted goods, warranty claim windows, government-contract claim procedures. These are short, unforgiving, and routinely missed during negotiations that feel productive.

The clauses that frame the fight

• Forum selection and choice of law. Where, and under whose law? If the clause points somewhere bad, know it before you draft a complaint for the wrong courthouse.
• Arbitration, jury waiver, class waiver. Each changes the economics and the leverage. Arbitration’s privacy may help you or shield them; think it through rather than reflexively enforcing whatever exists.
• Fee-shifting. A prevailing-party clause restructures every settlement conversation — find it now, including in incorporated terms and conditions.
• Damage caps and consequential-damages waivers. If consequential damages are waived and your real loss is lost profits, the claim on paper may be a fraction of the harm. Better to learn that in week one.
• The limitations period — statutory and contractual. Contracts can shorten limitations periods, and courts often enforce the shortened ones; the UCC’s four-year default can be reduced to one. Calculate the deadline under every plausible reading and calendar the earliest.

The performance question

• Decide deliberately whether to keep performing. Stopping is only safe if their breach is material — guess wrong and you become the breaching party. This single decision deserves a counsel conversation more than anything else on the page.
• Consider a demand for adequate assurance. In goods cases, UCC §2-609 lets you demand assurance in writing when reasonable grounds for insecurity arise — and suspend performance while you wait. It’s a powerful, underused way to force clarity without breaching.
• Mitigate, and paper the mitigation. Cover purchases, substitute vendors, redeployed resources. You’ll need to prove not just your loss but your reasonableness about it.

The record

• Assemble the operative contract — actually all of it. Master agreement, amendments, statements of work, purchase orders, change orders, and the terms-and-conditions battle nobody resolved at signing. Disputes have been decided by which version was operative; find out before they do.
• Capture course of dealing now. How the parties actually performed — invoices, delivery records, the accommodations everyone made — can fill gaps and waive formalities. It lives in inboxes and ERP systems that rotate; collect it early.
• Run the standard trio. Litigation hold issued, insurers and indemnitors noticed, fact-gathering routed under privilege. Hold checklist and first-week sequence, if useful.
• Write the demand as the first exhibit. Dates, clause citations, a concrete ask, a real deadline, rights reserved. The dispute’s eventual judge may form a first impression of your company from this one document.