The initial focus of many contract and tort litigations centers on whether a contract or duty has been breached or on establishing causation. However, damages are not only an essential element of these claims but the essence and endgame of the disputes. To quote Gertrude Stein, if damages have not resulted from the alleged wrongful act, “there is no there there.” A zealous advocate will seek to recover every last dollar his or her client can rightfully claim. However, disputes naturally arise when a damage claim approaches the realm of speculation or guesswork. Defense counsel will seize upon speculative damage claims by arguing that the plaintiff’s theory or calculation of recovery is conjectural and not sufficiently supported by the evidence with reasonable certainty.

Recent New York decisions illustrate that subtle differences in proofs and fact development may be outcome determinative on whether and to what extent damages may be considered speculative and thus unrecoverable as a matter of law. Accordingly, every litigator should know the basic rules governing speculative damages. For plaintiffs, framing and establishing damages in a concrete and ascertainable fashion can help secure significantly larger monetary awards. For defendants, successfully challenging plaintiff’s damages theory or calculation may mitigate or avoid altogether a damages award, even where the other elements of the cause of action have been satisfied. Counsel are well-advised to carefully plan at the outset of a litigation how they intend to prove or defend against a damages claim that might “push the envelope” under existing New York precedent.

Contract Cases

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]