Potential plaintiffs and freshly sued defendants often discount the importance of damages analysis when it comes to litigation planning and execution. After all, disputes over liability receive far more attention during pretrial motions practice and settlement discussions—where most cases get resolved. But, the amount and recoverability of damages can have a major impact on your dispute regardless of whether it ever reaches trial, and certainly if it does. In this issue of Litigation Insights, we start with a refresher course surveying the various and often misunderstood categories of damages available to civil litigants. Next, we explain how early attention to damages issues, even before a lawsuit has been filed, can enhance your prospects for a litigation victory.

THE ART AND SCIENCE OF WINNING YOUR CASE

Damages 101
By: Andrew C. Stevens

Pop quiz, hotshot: what’s the difference between general and special damages? Are consequential damages generally recoverable? Does it matter whether the action sounds in tort or contract? What about lost profits? If you don’t know, or just aren’t sure, then perhaps you’d better go back to Damages 101. More >

Damage Control: Common Errors in Contractually Limiting Damages
By: Theresa Y. Kananen

Parties negotiating a business deal are naturally optimistic about the relationship, giving short shrift—if they give any “shrift” at all—to the potential consequences should the deal fall through or the relationship sour. Yes, it’s often difficult to read the fine print through rose-colored glasses. This article explores a few of the more common pitfalls that result when parties fail to consider the issue of damages when negotiating a contract, or when parties use form, or off-the-rack, damages provisions without making appropriate modifications. More >

Don’t Be a Pyrrhus – 5 Steps To Help Avoid Making Your Litigation Victory a Loss
By: J. Tucker Barr

As experienced defense lawyers know, all is not necessarily lost just because your client is dead to rights on liability, because often damages-related defenses, such as the speculative nature of the plaintiff’s damages or the plaintiff’s failure to mitigate, can turn the tide in your client’s favor. This article counsels parties to begin laying the groundwork for a successful damages claim well in advance of litigation to ensure they don’t find themselves snatching defeat from the jaws of victory. More >

LITIGATION NEWS YOU CAN USE

Recent Supreme Court Decision Will Likely Impact Damages in Large, Complex Actions
By: Andrew C. Stevens

Although the use of statistical sampling to prove liability or damages is a hotly contested issue, a recent decision by the US Supreme Court provides an example of the type of case where the use of such “representative evidence” is permissible. More >

Use of ‘Caps’ To Apportion Individual Defendants’ Joint and Several Liability Permitted in Employment Discrimination Action
By: Theresa Y. Kananen

A recent federal court case from Connecticut is a reminder that some courts are open to creative ideas for apportioning damages among multiple defendants. More >

In Georgia, Public Policy Limits Freedom of Contract, but Just How Much Is Not Entirely Clear 
By: James A. Gober

Whether a party can contractually waive a statutory right designed to protect that party, or whether such waiver is unenforceable as against sound public policy, is often unclear, as a recent decision by the Georgia Supreme Court exemplifies. More >

AGG LITIGATORS IN THE TRENCHES

Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System – Trial Court Awards $36 Million to Client

When a North Georgia hospital authority terminated a management agreement with AGG client Erlanger Health System, and in the process attempted to avoid repaying a $20 million loan extended by Erlanger in connection with the agreement, AGG attorneys Karen Bragman, Edward Marshall, and Jennifer Shelfer sued to recover the unpaid loan amount and took steps to pursue the hospital’s collateral and guarantors. In a series of lawsuits, the hospital and its bank lender attempted to block Erlanger’s recovery by, among other things: (i) arguing that Erlanger’s security interest was subordinate to the bank’s and violated the Georgia Hospital Acquisitions Act and Hospital Authorities Law; (ii) claiming that Erlanger had engaged in “mismanagement” and “fraud”; and (iii) transferring collateral to a bankrupt entity to avoid collection and block exercise of the guaranties (which required foreclosure as a prerequisite). Successfully navigating those obstacles, Karen, Ed, and Jennifer recently secured a $36 million judgment in Erlanger’s favor and dismissal of their adversaries’ fraud and mismanagement claims. More >

Litigation Insights is published by Arnall Golden Gregory’s Litigation Practice Group. The information presented provides a general summary of recent legal and regulatory developments. It is not intended to be, and should not be relied upon as legal advice. For more information about the Litigation Practice Group, please contact Group Co-Chairs Henry R. Chalmers or Scott E. Taylor.
©2016. Arnall Golden Gregory LLP. All Rights Reserved.	Atlanta | Washington, DC

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