Trial Counsel for Law Firms

Liability & Damages

To be successful at trial a plaintiff must establish liability and prove damages or a defendant must undermine either issue.  This article will comment briefly on liability and explore the issue of damages, especially for financial losses.

Liability

Establishing liability requires showing that there was a breach of contract or negligence or an equitable remedy such as unjust enrichment.

The key thing is to know the legal test to be met so the evidence necessary to support the legal test is introduced at trial.  You’ve only got one shot to create an evidentiary record.

For a breach of contract case, to establish liability, there must a contract (offer, acceptance, consideration, intention), a breach and damages.

For a negligence case, it must be established that that there was a duty owed, a breach of the duty, causation, proximity and damages.

General Damages

Want general damages?  Tell a good story.  And back it up with some cases.

Read up on how to tell a good story in our recommended reading.

Punitive Damages

Claims for exemplary and punitive damages are pled and advanced far too often.  It’s usually a throwaway paragraph at the end of the claim and most of the time hurts the claim rather than helps it.  Think twice before asking for punitive damages.

Financial Damages

Some types of damages just need a good spreadsheet and a calculator.  Many types of financial loss will require an accountant, actuary, economist or other financial expert and involve present value calculations to account for future contingencies.

The remainder of this article will explore some of the details that need to go into calculating damages and establishing damages at trial.

Organizing the Source Documents

Proving damages first requires the client, the client’s bookkeeper and/or the client’s accountant to be very well organized. Here is a useful table to help with getting organized:

micks-trial-manual-damages-1

A brief explanation of each column:

Date of Payment – this is the date the payment is made. Note that credit card statements and bank records do not always coincide with the date of payment.

Amount Paid – this is self-explanatory. Cash payments can lead to disagreement.

Method of Payment – was the payment made by bank draft, cheque, debit, credit, cash, email transfer? If there are multiple bank or credit card accounts, it helps to make note of the account.

Who made Payment – this column assists where there are multiple plaintiffs. One or more of the plaintiffs may be entitled to recover the funds. This issue may affect the pleadings.

Who was Paid – this column assists where there are multiple defendants. Unless the defendants are jointly and severally liable, it may only be possible to claim from one of them. This issue may affect the pleadings.

Reason for Payment – it is helpful to note the reason for payment. The explanation may be found in the memo line of a cheque or on a quote or invoice. If not, the client needs to explain.

The Financial Records

Let’s say an invoice was paid by cheque and the client wants to prove damages. The client will need to be able to provide a copy of any quote (there could be multiple quotes for the job), invoice, cheque (front and back because the back has important bank clearing information) and bank statement.

As a result, the table on the previous page can be extended to include:

micks-trial-manual-damages-2

What is inserted into the table above? It could be a reference to a tab and/or page number for a volume of records that have all supporting information for all transactions organized in a coherent manner. A bound, tabbed and bates numbered volume is ideal.

Request to Admit

With a record of all damages inserted into a table and backed up by supporting documents, a request to admit should be proffered.   The request to admit should be that the defendant admits the various payments were made and the defendant admits the authenticity of the supporting documents.

If the request to admit is accepted, that will streamline trial. If the request to admit is not accepted by a difficult defendant, it will create a massive waste of time going through the minutiae of the damages calculation at trial that will most likely infuriate the Judge and result in a larger costs award against the defendant for the wasted time.

Proving Damages at Trial

The plaintiff should come armed with the spreadsheet and multiple copies of supporting documents. If the documents are business records, the appropriate Evidence Act notice should go out.  Rare is it that the defendant continues to deny that the payments were made or deny the authenticity of the documents when standing in front of a Judge. After tediously working through proof of a few transactions and introducing all supporting documents as exhibits one by one, the Judge is sure to lose patience with such a defendant.

This article is courtesy of the Ontario Civil Trial Manual

Click here for the Ontario Civil Trial Manual

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This manual is trial information, not trial legal advice.

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