The contentions of a plaintiff and defendant rarely align. Years are often spent delving into the specifics, pinpointing the strengths and weaknesses of each position. The process usually begins with each party presenting a valuation with all of their assumed facts to be true. This process lays down the goalposts for where each client would like to end up.

However, litigation and negotiation involve more factors than just damage calculations. It is rarely the case where all sides agree on the issues of liability, causation, and damages. With uncertainty present, concessions are usually made to bring the parties closer to each other, slowly moving toward a middle ground.

One question that is often discussed is, “what did a party do to minimize the damages?” In the legal world, this principal is called mitigation of damages. California Civil Jury Instructions have multiple instructions that address the issue of mitigation in a variety of contexts. For instance:

CACI 358 Mitigation of Damages If Defendant breached the contract and the breach caused harm, Plaintiff is not entitled to recover damages for harm that Defendant proves Plaintiff could have avoided with reasonable efforts or expenditures. You should consider the reasonableness of Plaintiff’s efforts in light of the circumstances facing them at the time, including their ability to make the efforts or expenditures without undue risk or hardship.

CACI 3930 Mitigation of Damages (Personal Injury) If you decide Defendant is responsible for the original harm, Plaintiff is not entitled to recover damages for harm that Defendant proves Plaintiff could have avoided with reasonable efforts or expenditures.

These jury instructions encompass the public policy of promoting mitigation of damages. Green v. Smith (1968) 261 Cal.App.2d 392, 396. Although this is an action for the Plaintiff to perform, “the burden is on defendant to establish matters asserted by him in mitigation or reduction…” McNary v. Hanley (1933) 131Cal.App. 188, 190. Furthermore, “[t]he rule of mitigation of damages has no application where its effect would be to require the innocent party to sacrifice and surrender important and valuable rights.” Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691.

Juris Economics provides users with a variety of methods to perform not only damage valuations but mitigation calculations as well. These calculations can be integrated into reports or performed as stand alone valuations. Should you need assistance with damage or mitigation calculations, please contact Juris Economics at (858) 477-9537 or sales@juriseconomics.com