353. Loss of Profits--Some Profits Earned Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 To recover damages for lost profits, [name of plaintiff] must prove that it is reasonably certain [he/she/it] would have earned more profits but for [name of defendant]'s breach of the contract. To decide the amount of damages for lost profits, you must: 1. First, calculate [name of plaintiff]'s estimated total profit by determining the gross amount [he/she/it] would have received if the contract had been performed, and then subtracting from that amount the costs [including the value of the [labor/materials/rents/expenses/interest on loans invested in the business]] [name of plaintiff] was would have had if the contract had been performed; Next, calculate [name of plaintiff]'s actual profit by determining the gross amount [he/she/it] actually received, and then subtracting from that amount [name of plaintiff]'s actual costs [including the value of the [labor/materials/rents/expenses/interest on loans invested in the business]]; and Then, subtract [name of plaintiff]'s actual profit, which you determined in the second step, from [his/her/its] estimated total profit, which you determined in the first step. The resulting amount is [name of plaintiff]'s lost profit. 2. 3. You do not have to calculate the amount of the lost profits with mathematical precision, but there must be a reasonable basis for computing the loss. ___________________________________________________________________________ New September 2003