One of the more difficult conversations I have with clients involves the distinction between proving liability and proving damages.
Whether we’re discussing a breach of contract, negligence, tortious interference, breach of fiduciary duty, or virtually any other civil claim, there are generally two separate questions:
- Can we establish that someone did something legally wrong?
- And can we establish that we’re entitled to recover damages as a result?
These are two very different conversations but both are critical for the analysis.
A client may have overwhelming evidence that a contractor failed to perform work properly, that a business partner breached a fiduciary obligation, or that someone interfered with an existing business relationship. That evidence may establish a compelling case for liability.
But it doesn’t necessarily establish the amount of damages, or even whether certain damages are legally recoverable.
And that’s where things can become particularly complicated.
Damages are not simply a matter of calculating how much money someone believes they’ve lost. There are questions of causation, foreseeability, mitigation, and whether the claimed losses can be established with reasonable certainty.
Sometimes damages are expanded by statute, allowing for attorney’s fees, statutory penalties, or even enhanced damages under certain circumstances. Other times, damages are significantly restricted by contract, through limitations of liability, exclusions of consequential damages, or other provisions that the parties may have agreed upon years before the dispute arose.
In other words, you can be absolutely right about what happened and still face substantial obstacles recovering what you believe you’re owed.
I recently explained this distinction to a client who wanted reassurance that I believed in the merits of their case. And I understood the question. Clients want to know that their attorney believes in their position, particularly when they’ve invested substantial time, money, and emotional energy into litigation.
My response was relatively simple:
“I’m advocating for you and your position as best as one possibly can. Liability is one conversation. Damages are a completely separate conversation. There are risks on both of those prongs. We put our best foot forward, that’s all we can do in these situations, and trust in the process.”
My job isn’t to guarantee a result, nor is it to simply tell clients what they want to hear. My job is to recognize the strengths and weaknesses of their claims, advocate vigorously on their behalf, and help them understand the risks involved.
Believing in a client’s case doesn’t require pretending those risks don’t exist.
Litigation is inherently uncertain. Even the strongest claims can encounter unexpected evidentiary challenges, unfavorable legal interpretations, or difficulties establishing damages.
We prepare. We present the evidence. We make the strongest arguments available. And we recognize that liability and damages, while related, each require their own careful analysis.
Ultimately, good advocacy isn’t measured by how confidently an attorney predicts victory. It’s measured by how effectively that attorney prepares, communicates, and advocates for the client’s interests while remaining grounded in the realities of the law.
Both have to happen in every case.
