Network Firm News

Tuesday, November 27, 2007

Hired at 11th Hour, Trial Lawyers Coe and Burkley Had to Admit Breach and Rely on the Jury to Return Zero Damages

Glenn E. Coe and Zisca Burkley won defendants' verdicts on five of six counts in a four week jury trial in Stamford, Connecticut on the Complex Litigation Docket. In the sixth count, the jury returned a Plaintiffs' verdict but zero damages.

Coe was retained to take over the case as lead defense counsel only two months before trial although the case was pending for two and a half years and most of the discovery was completed.

The case concerned claims against defendants in connection with the development of a lifestyle shopping center in Concord, New Hampshire, with counts for breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, conversion, tortious interference with business expectancies, and violation of the Connecticut Unfair Trade Practices Act ("CUTPA").

In his opening statement and throughout the trial, Coe had to acknowledge that his clients, in fact, had breached the contract, but argued that his clients had cured the breach and that Plaintiffs had suffered no damages proximately caused by the breach.


Originally, the jury returned verdicts for the Plaintiffs on the counts of breach of the covenant of good faith and fair dealing, breach of fiduciary duty, conversion and CUTPA, the last of which provided for punitive damages.

The jury did not find for plaintiffs on the breach of contract count, even though Coe had conceded that defendants breached the contract. The jury's reason was that damages is an essential element of that count and the jury concluded that Defendants' conduct caused no injury to Plaintiffs.

The court then instructed the jury that its verdict was inconsistent with its interrogatories because causing injury was also an essential element of the breach of fiduciary, conversion and CUTPA counts.

The jury had to either change its verdict form or its responses to interrogatories, depending on whether it concluded that defendants' conduct had or had not caused injury to the Plaintiffs.

After another two hours of deliberation, the jury changed its verdict form to reflect a Plaintiffs verdict on only the breach of the covenant of good faith and fair dealing, but still awarded zero damages for that count.

β€œHis object all sublime
He will achieve in time β€”
To let the punishment fit the crime β€”
The punishment fit the crime.”

"The Mikado" by W.S. Gilbert and Arthur Sullivan

"It is always satisfying to win a case especially when you have had to concede from the outset that your client breached an agreement and that breach was the basis for all the counts in the complaint," Coe said.

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