Section 16 Mitigation of Damages Through Evidence of Other Bad Acts

• Library: Damages 2012

By seeking reputational damages, a plaintiff places reputation into issue. Although the matter is subject to debate, and certainly beyond the scope of this chapter, under certain circumstances, the defendant may be able to offer evidence of other bad acts by the plaintiff to refute the plaintiff’s claim that the defendant’s actions have caused harm to the plaintiff’s reputation. See, e.g., McCormick on Evidence § 186, p. 744 (Kenneth S. Broun, gen. ed., 6^th ed. 2006 & Supp. 2010). The argument could be especially strong in federal court when Federal Rule of Evidence 405(a) controls. Missouri law may be less clear. See John C. O’Brien, Missouri Law of Evidence § 10‑3 (4^th ed. 2002).

Because the relevant inquiry is the plaintiff’s reputation, and not whether that reputation is deserved, a relevant factor in determining admissibility is the extent...