Ten Recurring Themes and Techniques in Defending Breach of Contract Cases
This article, written by Gentry Locke attorneys William R. Rakes, Gregory J. Haley, and Abigail E. Murchison, was a Virginia CLE presentation to attendees of an event sponsored by the Advanced Business Litigation Institute in Charlottesville, Virginia on June 21, 2014.
Due to the length of the article, it is provided in PDF format here.
The topic of trying breach of contract cases from the defense perspective is huge. This outline addresses recurring themes and topics in defending these cases. The content reflects the personal experiences of the authors and the “lessons learned.” Many of the comments below may seem obvious, but most of the suggestions are based on observations of obvious things that competent parties fail to do.
Business litigation involves complicated evidence about issues that are not familiar to jurors (or judges) including business practices, technical issues, industry practices, and related tax and accounting issues. The task of defense counsel is to make the evidence and law make sense to the jury. The trial is where the facts, law and the fact-finder’s common sense all come together. There will be competing narratives and claims of victimhood or villainy. The defense counsel must develop a coherent strategy and then execute that strategy while grappling with the opposing party, the court, and his or her own client.
The defense must be relentlessly realistic in evaluating the facts and the evidence. At trial, defense counsel must be the truth-teller in the room and the source of consistently reliable and accurate information. It is a simple reality that many cases with a lopsided plaintiff’s victory were poorly defended. It is often the difficult cases that get tried; i.e., those cases with tough liability issues, large damages, and/or difficult personalities involved. Defense counsel, however, must implement a defense strategy that manages and minimizes risk, not a strategy that maximizes risk by antagonizing the court and creating avoidable “all or nothing” decisions.
For cases which appear (at least in hindsight) to be examples of defense strategies that increased risk, see: Prospect Development Company v. Bershader, 258 Va. 75 (1999) (affirming award of discretionary attorney’s fees of $151,000 on an award of $34,000 with equitable relief; aggressive defense tactics noted); and Condominium Services, Inc. v. First Owner’s Association, 281 Va. 561 (2011) (affirming punitive damages award of $275,000 associated with a $91,000 breach of contract and conversion claims; aggressive business tactics and weak counterclaims noted).
Read the full article here.