Can I get attorney's fees if my business sues (or is sued) for breach of contract? This is a question that comes up all the time. The answer in Oklahoma will likely be: it depends on what your contract says. That is because in Oklahoma, in most business disputes, the victor in a lawsuit is not entitled to recover its attorneys fees. There are some notable exceptions, for example suits on open account and to enforce a mechanic's lien. But, unless your business dispute falls into a particular category, you likely will not be able to recover attorneys fees, unless you've thought ahead and allowed for the recovery of attorneys fees in your contract.
Generally, if your business is a service provider, you should consider having your customers sign a retention agreement in any event. Presenting a customer with a written agreement should not be confrontational or "scary" for the customer. It is a sign of professionalism. The agreement should be as concise as possible, and written in clear language that does not put the customer off. This may seem obvious, but the agreement should set forth the work that you will do in simple and understandable terms.
The basic elements that a customer agreement should include are:
1. Who is doing the work. The full legal name of the business should be included (in addition to the trade name of the company, if there is one.
2. Term. How long the agreement will be in operation, and under what circumstances it can be terminated.
3. Scope of Work. What your company will do, and in some cases, what it will not do.
4. Payment. How much, how payment is determined (for example, by the hour or by the job), and when will payment be due.
5. Estimates. If you provide an estimate, it should be clearly identified as such, and the customer notified that the actual amount due may be higher or lower than the estimate.
6. Disputes. Set forth as simply as possible how disputes may be resolved by the parties without resort to litigation. If that process is unsuccessful, then consider an arbitration clause, or a clause setting forth which courts will have jurisdiction over a dispute.
7. Attorneys Fees. Prevailing party is entitled to recover attorney's fees. Without this clause, it will be difficult for you to recover attorneys fees. The presence of this clause may ultimately help you have enough leverage to get a dispute settled without the necessity of filing a lawsuit, saving you time and money to get back to running your business.
You should have an attorney draft this agreement for you, or at the least, review the contract before you start using it. If the other side has prepared the contract, you should have an attorney review their draft before you sign it. That extra step will likely save your business a considerable amount of money in the long run.