The Rule - The plaintiff must prove the damages with reasonable certainty.

How much certainty? Reasonable certainty is not 100% certainty. The plaintiff need not prove for certain that the breach caused the damages that the plaintiff is seeking.

The trier of fact determines whether damages have been proven with reasonable certainty in light of the relevant evidence.

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Relevant Evidence: Lost Profits: Displacement of an Existing Business - In many cases, the plaintiff can provide the relevant evidence of lost profits by pointing to a track record, i.e., a history of operations in which there is a reliable basis for predicting benefits.

For example, if the plaintiff’s business had operated for years (history of operations) and generated profits during that period (reliable basis for predicting benefits), the trier of fact could well assume that the plaintiff could have continued to do so but for the defendant’s breach.

Relevant Evidence: Lost Profits: Related Situations - Even if there is no existing business, the plaintiff could still prove lost profits by providing evidence of a successful model of business conducted by a third party.

Relevant Evidence: Emotional Damages; Loss of Goodwill - In other situations, the plaintiff may be seeking to recover for emotional damages or for the loss of goodwill. Following a liberalization of the law, some courts allow recovery for such damages.

The Law School Experience - These topics are covered in our tutorial on The Expectation Measure of Damages: Proof. To access sample tutorials from our catalog, click on The Law School Experience.