Litton Industries, Inc. v. IMO Industries, Inc.

PER CURIAM.

The principal issue in this appeal is the award and computation of attorneys’ fees arising out of a breach of contract action. Plaintiffs sought $9 million in damages for the alleged breach of two provisions in the contract and for fraud. The jury found that defendants breached one provision of the contract, rejected plaintiffs’ other claims, and awarded plaintiffs $2.3 million in damages. The trial court determined that the contract provided for attorneys’ fees and costs and awarded plaintiffs $3,858,725 in attorneys’ fees, $896,920 in experts’ fees, $180,718 in consultants’ fees, and $1,039,540 in costs, as well as prejudgment interest.

The Appellate Division essentially affirmed, but remanded on an issue not relevant to this appeal. We granted both defendants’ petition for certification related to the attorneys’ fees and costs, and plaintiffs’ cross-petition related to the calculation of prejudgment interest and two asserted trial errors. We reverse in part and remand. We hold that the agreement provided for attorneys’ fees and costs and that the amount of the fee award is governed by traditional principles applicable to attorneys’ fee awards, within the context of the contract. We also hold that the trial court did not abuse its discretion in the amount awarded for prejudgment interest or commit error in the claimed trial deviations.

I.

The underlying litigation centered on a complex contract between plaintiffs Litton Industries, Inc. and Litton Systems, Inc. (collectively Litton or plaintiffs), and defendants IMO Industries, *379Inc., Varo, Inc., Baird Corporation, and Optic Electronic International, Inc. (collectively defendants). In May 1995, plaintiffs agreed to purchase certain assets of defendants’ optical system business for $52 million. The Purchase and Sale Agreement (Agreement) provided for a transfer date of June 2, 1995. Defendants warranted that they did not reasonably anticipate that any of their government bids or contracts would result in a loss and agreed not to submit any government bid or contract that they estimated in good faith would result in a loss during the period before the transfer date.

Prior to the transfer date, defendants submitted a bid to the United States Army for the refurbishment and manufacture of certain military equipment. The transfer occurred in early June 1995, and shortly thereafter the Army awarded the military equipment contract to defendants. The Army contract ultimately resulted in a huge financial loss for plaintiffs.

On May 8, 1997, plaintiffs filed a complaint against defendants alleging that they lost approximately $16 million in fulfilling the obligations under the Army contract on which defendants improperly bid. Plaintiffs initially made two claims: breach of § 3.12(a)(iv) of the Agreement and a fraud claim based on the same alleged breach. Section 3.12(a)(iv) provided in part that

[e]xcept as described on Schedule 3.12(a)(iv), none of the Government Contracts, Sales Contracts, Bids or Government Bids of the Sellers with respect t.o the Business is reasonably anticipated to result in a Contract Loss upon completion of performance..
((emphasis added).]

Plaintiffs asserted that defendants breached that provision because they should have anticipated a loss on the bid submitted to the Army.

In June 2003, plaintiffs moved to amend their complaint to include an additional claim based on the alleged violation of § 5.3(ii) of the Agreement, which prohibited defendants from making any government bid or contract that they estimated in *380good faith would result in a loss. Section 5.3 of the Agreement provided in part that

[e]xcept as otherwise may be required by Applicable Law, Antitrust Law, or Government Contract Law, the Sellers shall not, without the prior consent of Litton ... make or enter into any Contract, Government Bid or Bid respecting ... (ii) Contracts for which the total cost estimate at the time of execution thereof or at the time of the Government Bid or Bid, as the case may be, as estimated in good faith by the Sellers, would result in a net loss on the applicable Contract----

At trial plaintiffs sought $9,022,042 for the claims based on the theories of fraud and breach of both § 3.12(a)(iv) and § 5.3(ii) of the Agreement. Ultimately, plaintiffs prevailed on the breach of contract claim premised on § 5.3(ii), but the jury rejected all other claims. The jury awarded plaintiffs $2.3 million in damages, which the parties agreed to reduce to $2.1 million to correct an error.

Defendants moved for judgment notwithstanding the verdict, and plaintiffs filed a motion to recover attorneys’ fees and costs in the amount of $6,411,354. Section 11.1 of the Agreement provided that defendants agreed to indemnify and reimburse plaintiffs for any and all Losses suffered or incurred by the Buying interest (whether suffered or incurred with respect to any Third-Party Claim or otherwise) and resulting from or arising out of each of the following:

(b) Breach of Covenant of Agreement
Any breach of nonfulfillment by [defendant] or any Seller of any of their covenants, agreements, or other obligations set forth in this Agreement____ *381to determine and recommend ... a lodestar amount for the attorneys!’] tees and costs reasonably incurred by Plaintiffs in the litigation of their claim under Islection 5.3(ii) of the [Agreement], the claim on which the Plaintiffs prevailed at trial. The Court will conduct its proportionality analysis and determine the amount of any fee award, so the Special Master need only determine the lodestar amount for that claim.

*380“Losses” is defined in the Agreement as “all demands, claims ... actions or causes of action ... losses, damages, costs, expenses, liabilities, judgments, awards ... and amounts paid in settlement (including reasonable attorneys’ fees and costs incident to any of the foregoing).... ”

The trial court denied defendants’ motion for judgment notwithstanding the verdict and appointed a Special Master1 on the issue of attorneys’ fees. Specifically, the trial court asked the Special Master

*381The Special Master found that plaintiffs’ claims under § 3.12 and § 5.3 arose from a “common core of facts” and that those claims were so interrelated that the legal services on the § 3.12 claim were to be included in the lodestar amount for the § 5.3 claim. The Special Master focused on the fact plaintiffs would have had to establish the same proofs to succeed on a claim under either § 3.12 or § 5.3. The Special Master determined that the attorneys’ fees and costs would be better adjusted through a proportionality analysis than by parsing out each and every fee from the intermingled claims, and that a reduction was necessary for the failed fraud claim. Because the fraud claim was one of plaintiffs’ three basic claims, the Special Master found it would be fair and reasonable to reduce plaintiffs’ request for attorneys’ fees by one-third. The Special Master also reduced plaintiffs’ request for costs by a similar amount. After calculating the reduction, the Special Master recommended an award of $2,971,295 for attorneys’ fees and $693,026.96 for costs.

The trial court received the Special Master’s report and rendered a decision on September 13, 2006. The court denied defendants’ motion for judgment notwithstanding the verdict, and awarded plaintiffs legal fees, costs, and prejudgment interest at a simple rate of interest from the date of commencement of the litigation. In addressing the legal fees, the trial court agreed with the Special Master that the contractual claims under § 3.12 and § 5.3 constituted a “common core of facts.” The trial court explained that

[t]he claims themselves are inextricably intertwined . The claims relate and overlap and it is impossible to envision a manner of separating the legal work and expenses associated with one claim from the other. II simply cannot be done. They indeed are based upon a common core. Accordingly, and without qualification, this court finds that the legal work, costs and expenses attributable to the two *382contractual claims may be attributed entirely to the § 5.3(ii) claim for purposes of determining the [lode]stai\

However, the trial court rejected the- Special Master’s conclusion that the fraud claim represented an equal one-third amount of legal work, expenses and costs, as compared to the two contractual claims. The court found that the fraud claim could be easily separated and required markedly less work than the contractual claims. The court accepted the itemized reductions proposed by plaintiffs’ counsel and ordered a total fee offset for the fraud claim of $226,250. The court approved a lodestar of $4,287,472, and concluded that plaintiffs’ costs of $1,039,540 were fully allocated to their successful claim, as were the experts’ fees of $896,920, and the consultants’ fees of $180,718.

The trial court next discussed proportionality:

Generally, a proportionality analysis relates to a modification of a [lode]star fee, by virtue of fee-shifting statutes, in order to accommodate the level of success achieved in litigation. Here, the basis for the fee application is the [Agreement] and the riode]star computation work was performed by a [S]pecial [M]aster as a result of rare agreement between the parties as embodied in the appointing order dated April 15, 2005____
[E]xpert and consultant fees have been determined. Costs in [the] amount of $1,039,540.00 have been found to be intrinsically reasonable and fully allocated to [plaintiffs’] successful jury award. Therefore, the proportionality adjustment pertains to the attorneys’ fees alone.

In its proportionality analysis the court reasoned that

[a] critical consideration in the required analysis is the relationship of the success realized as compared to the amount of damages sought. A meaningful difference exists between the two in this case. [Plaintiffs] asked for damages of more than $9 million and [were] rewarded with a verdict of $2.3 million. Even [plaintiffs’] expert on this issue obliquely expressed an understanding that a partial reduction of attorneys’ fees would be forthcoming. This is an accurate forecast. The question, of course, is by what amount?
The answer is not the product of a mathematical computation resulting in a percentage based on a comparison of prospectively recoverable damages to damages recovered in fact. While this relationship unquestionably is important, an answer is dependent on a complex of other considerations, including those factors referenced in RPC 1.5.

The trial court noted that the litigation was extremely complex, required lengthy discovery and intense trial preparation, resulted *383in a long trial, and that “[ cjompetent counsel expended much energy and a great number of legal hours, reasonable legal hours, successfully pursing legal redress against [defendants] because there was no alternative.” The court concluded that there was no justification to greatly modify plaintiffs’ fee request and determined that a reduction of ten percent was both fair and reasonable. Consequently, the court deducted ten percent from the lodestar of $4,287,472 to arrive at an attorneys’ fee award of $3,858,725. With the approved costs of $1,039,540, experts’ fees of $896,920, and consultants’ fees of $180,718, the trial court awarded plaintiffs a total of $5,975,903 in attorneys’ fees and costs. Further, the court found that this was an appropriate case for the award of prejudgment interest and looked to the tort model as a guide to award plaintiffs simple interest commencing as of the filing date of the original complaint.

In the amended judgment, the court entered judgment in favor of plaintiffs in the amount of $8,886,407.03, as follows:

a. 82,100.000.00 on the jury’s vertliel for compensatory damages;
b. Prejudgment interest awarded pursuant t.o R. 4:42-11 (a)(ii), in the amount of $810,504.03 (calculated on the amount of t.he compensatory award of $2,100,000.00 from the (late of the filing of the Complaint on May 8, 1997 through October 6, 2006); and
c. Attorneys’ fees, expenses and costs of litigation awarded in the amount of $5,975,903.00.

Both sides appealed. In an unpublished opinion, the Appellate Division reversed in part, and remanded for trial limited to plaintiffs’ claim for administrative expenses and lost profits associated with their successful contract claim. In all other respects, the Appellate Division affirmed the judgment of the trial court, and granted a stay of execution on the final amended judgment.

The panel found that the definition of “losses” in the Agreement clearly included attorneys’ fees in connection with litigation, and that the tidal court’s “common core of facts” analysis was supported by the record. Further, the panel agreed with the trial court that the fraud claim was easily separated from the other claims, and that the legal time associated with that claim did not *384account for a large portion of the legal work. The panel approved the calculation of the lodestar and noted that the trial court “critically considered” the large difference between the amount of damages sought and the amount actually recovered. Although the panel stated that it might have arrived at a different result than the trial court, it concluded that in light of the trial court’s consideration of all the appropriate factors, there was no abuse of discretion in the amount of legal fees and costs awarded.

In respect of plaintiffs’ cross-appeal, the panel affirmed the trial court’s award of prejudgment interest at a simple interest rate and rejected plaintiffs’ multiple allegations of trial error.

We granted defendants’ petition and plaintiffs’ cross-petition. 195 N.J. 522, 950 A.2d 908, 195 N.J. 522, 950 A.2d 908 (2008).

II.

Defendants contend that it was error to award fees to plaintiffs because the Agreement lacked a clear fee-shifting provision. Further, defendants urge that even if an award of attorneys’ fees was required by the Agreement, the trial court: improperly failed to reduce the award to eliminate fees for sendees related to unsuccessful claims; improperly applied the “common core” doctrine that was developed for statutory, not contractual, fee-shifting provisions; improperly performed the proportionality analysis of the lodestar in a contractual fee-shifting case; and improperly failed to apply the proportionality analysis to the costs.

Plaintiffs counter that the Agreement explicitly provided for attorneys’ fees and costs, and that the award was appropriate and consistent with this Court’s fee-shifting jurisprudence.

In their cross-petition, plaintiffs argue that the trial court erred by failing to apply the tort interest-rate rule that permits an additional two percent above the otherwise prescribed interest rate. Plaintiffs also argue that the trial court erred in excluding portions of witness testimony in the readback to the jury, and in its treatment of plaintiffs’ counsel during closing arguments when *385the court instructed the jury to disregard a portion of counsel’s closing argument.

In response, defendants assert that plaintiffs have shown no manifest denial of justice to support their claim for enhancement of the prejudgment interest award, and that the trial court did not err in its treatment of the evidentiary readbaek issue or counsel’s closing arguments.

nr.

In general, New Jersey disfavors the shifting of attorneys’ fees. N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 569, 730 A.2d 843 (1999). However, “a prevailing party can recover those fees if they are expressly provided for by statute, court rule, or contract.” Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 440, 771 A.2d 1194 (2001). When the fee-shifting is controlled by a contractual provision, the provision should be strictly construed in light of our general policy disfavoring the award of attorneys’ fees. See N. Bergen, supra, 158 N.J. at 570, 730 A.2d 843.

The focus in this case is the contractual provision in the agreement that required defendants to reimburse plaintiffs lor “losses” arising out of any breach of the Agreement. “Losses” were defined as “all demands, claims, claims for reimbursement, actions or causes of action, assessments, losses, damages, costs, expenses, liabilities, judgments, awards ... and amounts paid in settlement (including reasonable attorneys’ fees and costs incident to any of the foregoing).... ”

Defendants urge that the Agreement is not specific enough to warrant attorneys’ fees. We disagree. The plain language in the Agreement provides that attorneys’ lees and costs are included in the definition of “losses.” Although the words “reasonable attorneys’ fees and costs” are located in a parenthetical, that does not detract from the intent in the Agreement that attorneys’ fees and costs would be recoverable as part of plaintiffs’ losses. We are *386satisfied that the trial court correctly concluded that the Agreement provided for attorneys’ fees and costs in plaintiffs’ successful breach of contract claim.

We next consider the dollar amount of the award. Preliminarily, we note that a reviewing court will disturb a trial court’s award of counsel fees “ ‘only on the rarest of occasions, and then only because of a clear abuse of discretion.’ ” Packard-Bamberger, supra, 167 N.J. at 444, 771 A.2d 1194 (quoting Rendine v. Pantzer, 141 N.J. 292, 317, 661 A.2d 1202 (1995)).

We have applied the same test for reasonable attorneys’ fees in contract cases that we use in other attorneys’ fee award cases in New Jersey. See N. Bergen, supra, 158 N.J. at 570, 730 A.2d 843. In determining the reasonableness of an attorneys’ fee award, the threshold issue “is whether the party seeking the fee prevailed in the litigation.” Ibid. In that regard, the party must establish that the “ ‘lawsuit was causally related to securing the relief obtained; a fee award is justified if [the party’s] efforts are a necessary and important factor in obtaining the relief.’” Ibid. (quoting Singer v. State, 95 N.J. 487, 494, 472 A.2d 138, cert. denied, 469 U.S. 832, 105 S.Ct. 121, 83 L.Ed.2d 64 (1984)).

In the present case, plaintiffs satisfied the tests for the award of fees. They prevailed on one of their breach of contract claims, and the contract required defendants to indemnify plaintiffs for their losses in the event of a breach.

The next step in determining the amount of the award is to calculate the “lodestar,” which is that number of hours reasonably expended by the successful party’s counsel in the litigation, multiplied by a reasonable hourly rate. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21, 860 A.2d 435 (2004). Rule of Professional Conduct 1.5(a) “commands that ‘[a] lawyer’s fee shall be reasonable’ in all cases, not just fee-shifting cases,” id. at 21-22, 860 A.2d 435 (quoting RPC 1.5(a)), and requires courts to consider:

*387(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee. customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;
(8) whether the fee is fixed or contingent.
[RPC 1.5(a).]

The computation of the lodestar mandates that the trial court determine the reasonableness of the hourly rate of “the prevailing attorney in comparison to rates ‘for similar services by lawyers of reasonably comparable skill, experience, and reputation’ in the community.” Furst, supra, 182 N.J. at 22, 860 A.2d 435 (quoting Rendine, supra, 141 N.J. at 337, 661 A.2d 1202). Further, the court must consider the degree of success in determining the reasonableness of the time expended. Furst, supraq, 182 N.J. at 23, 860 A.2d 435. Thus, when a party has succeeded on only some of its claims for relief, the trial court should reduce the lodestar to account for the limited success. Ibid. Moreover, if the same evidence adduced to support a successful claim was also offered on an unsuccessful claim, the court should consider whether it is nevertheless reasonable to award legal fees for the time expended on the unsuccessful claim.

Beyond the lodestar amount, in cases in which the fee requested far exceeds the damages recovered, “the trial court should consider the damages sought and the damages actually recovered.” Packord-Bamberger & Co., supra, 167 N.J. at 446, 771 A.2d 1194. In addition to that proportionality analysis, the court must evaluate the reasonableness of the total fee requested as compared to the amount of the jury award. That is, when the amount actually recovered is less than the attorney's fee request, the court must consider that fact in determining the overall *388reasonableness of the attorney’s fee award. Ibid. To be sure, there is no precise formula for that portion of the reasonableness analysis. The ultimate goal is to approve a reasonable attorney’s fee that is not excessive.

With those principles as our guide, we turn now to determine whether the trial court abused its discretion in evaluating plaintiffs’ fee application. This is a contract case. Although the parties could have expressly provided in the contract what approach would be utilized, in the absence of express language in the agreement, we resort to our jurisprudence for attorneys’ fee-shifting cases, which includes an analysis of the same evidence presented for both successful and unsuccessful claims. We do that in recognition of the fact that the parties to a contract are presumed to know the relevant legal principles and to have adopted them if they have not expressed a different understanding.

In § 3.12, defendants represented that they did not reasonably anticipate that any of their government bids would result in a loss, and in § 5.3, defendants agreed not to make any government bid that they reasonably estimated would result in a loss. The primary difference between the two was the timing of the bids. § 3.12 addressed bids that had already taken place when the contract was entered into and § 5.3 governed future bids. Here, the Special Master and the trial court each found a common core of facts that require the production of essentially the same evidence in evaluating the time spent on the successful and unsuccessful contract claims. We agree and affirm that conclusion.

The trial court found that the attorneys’ fees related to the unsuccessful fraud claim were identifiable and therefore deleted that time from the award. That was appropriate.

The trial court further determined that an adjustment to the lodestar amount was necessary because the actual damages recovered were substantially less than the amount of damages sought. As found by the Appellate Division, the trial court *389“critically considered” the large difference between the amount of damages sought and the amount actually recovered and reduced the fee by ten percent. However, it does not appear that the trial court also considered the large difference between the attorneys’ fee requested and the amount actually recovered. Unlike the traditional fee-shifting case in which enhancement has some relevancy as a type of encouragement to represent a party, see Rendine, supra, 141 N.J. at 339, 661 A.2d 1202, the opposite applies in a contract case. That is, although enhancement is not a concern, the relationship between the fee requested and the damages recovered is a factor to be considered by the trial court because the notion of proportionality is integral to contract fee-shifting to meet the reasonable expectation of the parties.

Here, the trial court should have separately considered whether to reduce even more the amount of the fee in light of the fee request that exceeded the amount of the recovery. That analysis is necessarily fact-sensitive as there is no precise test or mathematical calculation for that adjustment. The trial court is in the best position to weigh the competing arguments in making any fee adjustment to ensure that the counsel lee award is reasonable.

On remand, in addition to plaintiffs’ claim for administrative expenses and lost profits associated with their successful contract claim that must be retried, the trial court must reconsider the reasonableness of the attorneys’ fee request in light of all of the factors noted herein.

Lastly, defendants disagree with the trial court’s award of all of plaintiffs’ costs in light of their limited success. The trial court found that the costs were intrinsically related to the successful claim, and we find no contrary evidence to reach a different decision. Consequently, the trial court did not abuse its discretion in determining that the costs of $L,089,640 were reasonable and fully allocable to plaintiffs’ successful jury award.

*390IV.

A.

We turn next to plaintiffs’ cross-appeal. Plaintiffs contend that the trial court properly exercised its discretion to initially utilize the tort rate under R. 4:42-11(a)(ii) to award prejudgment interest, but that the court should add an additional 2% because the compensatory damages judgment exceeded “the monetary limit of the Special Civil Part and they are entitled to the higher rate of R. 4:42—11(a)(iii).” We disagree.

Although prejudgment interest in a tort action is expressly governed by R. 4:42-ll(b), “the award of prejudgment interest on contract and equitable claims is based on equitable principles.” County of Essex v. First Union Nat’l Bank, 186 N.J. 46, 61, 891 A.2d 600 (2006). Thus the award of prejudgment interest in a contract case is within the sound discretion of the trial court. Similarly, the rate at which prejudgment interest is calculated is within the discretion of the court. See Musto v. Vidas, 333 N.J.Super. 52, 74-75, 754 A.2d 586 (App.Div.2000). We have explained that the primary consideration in awarding prejudgment interest is that

the defendant has had the use, and the plaintiff has not, of the amount in question; and the interest factor simply covers the value of the sum awarded for the prejudgment period during which the defendant had the benefit of monies to which the plaintiff is found to have been earlier entitled.
[Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 506, 323 A.2d 495 (1974).]

Unless the allowance of prejudgment interest “represents a manifest denial of justice, an appellate court should not interfere.” County of Essex, supra, 186 N.J. at 61, 891 A.2d 600 (internal quotation and citation omitted).

The trial court found that this was an appropriate case to award prejudgment interest, and neither side challenges that decision. Moreover, the trial court merely used R. 4:42-11 as a guide and ultimately concluded that there were no unusual circumstances “to *391warrant an enhancement of the simple interest rate.” The trial court’s decision to choose the rate set by R. 4:42—ll(a)(ii), without the enhancement added by subsection (a)(iii), was not a manifest denial of justice.

B.

Plaintiffs next challenge the trial court’s response to the jury’s questions concerning the limitations of federal antitrust law as it may have impacted the Agreement.

Although the reading of all or part of a witness’ testimony is within the discretion of the trial court, “in the absence of some unusual circumstance, the request should be granted.” State v. Wolf, 44 N.J. 176, 185, 207 A.2d 670 (1965); see also State v. Wilson, 165 N.J. 657, 660, 762 A.2d 647 (2000). In Wolf this Court reasoned that

|t]he true administration of justice calls for such action. Where there is a doubt in the minds of jurors as to what a witness said, it cannot be prejudicial to anyone to have that doubt removed by a rehearing of his testimony. There is no need to be chary for fear of giving undue prominence to the testimony of the witness. If under our system of trials a jury is to be considered intelligent enough to be entrusted with powers of decision, it must be assumed they have sense enough to ask to have their memories stimulated or refreshed only as to those portions of the testimony about which they are in doubt or disagreement. It must be assumed also that if they had any similar doubts or disagreements about statements of other witnesses they would seek the same remedy. If they do not ask for further reading there is no right in a party to demand it. The matter must be left in the sensitn e discretion of the trial judge,
[Wolf, supra, 44 N.J. at 185, 207 A.2d 670.]

In the present case, during deliberations the jury initially asked, “what restrictions does [the federal act] have on closing a corporate purchase?” The question was related to the testimony of plaintiffs’ witness, Thomas Hicks, as evidence of “reliance” on plaintiffs’ fraud claim. Hicks had testified that plaintiffs did not review' the Army bid prior to its submission because of the constraints placed on plaintiffs during the approval process.

After consultation with counsel, the trial court read certain portions of Hicks’ testimony to the jury. The jury then asked *392whether the act “forbidls] [plaintiffs] from looking at [the] bid or was it [plaintiffs’] interpretation and their decision not to look at the bid? Does it actually forbid them, because of the pending deal, to stay away from it?” After considerable discussion with counsel, the court read additional portions of Hicks’ direct and cross-examination that included his response that it was plaintiffs’ choice not to look at the Army bid. The court then asked if the jury had any other follow-up questions. After no juror responded, the jury continued its deliberations.

Plaintiffs contend that the court erred in not reading another response by Hicks, in which he testified that “LiJt’s not that we didn’t look at it. We said, it’s your business to operate. We can’t look at it because of Lfederal] regulations, Harl^Scott, other things. We’re afraid to get involved. We can’t tell you how to nm your business until you turn it over.” In rejecting that request, the trial court exercised discretion in reasoning that the testimony was vague and would not help answer the jury’s question.

The Appellate Division found no merit to plaintiffs’ challenge and we agree with that conclusion. The trial court reviewed the jury’s questions with counsel and ordered a readback of the relevant portions of Hicks’ testimony on direct and cross-examination. The court fairly ascertained the portion of the testimony the jury wanted, and after the selected testimony was read, the court inquired if the jury had additional questions. Receiving no response, the trial court allowed the jury to continue its deliberation. Simply put, the trial court fairly and adequately responded to the jury’s questions.

C.

Plaintiffs further contend that the trial court erred when it interrupted plaintiffs’ counsel’s summation. The trial court has broad discretion in the conduct of the trial, including the scope of counsel’s summation. The abuse of discretion standard applies to *393the trial court’s rulings during counsel’s summation. See Hisenaj v. Kuehner, 194 N.J. 6, 12, 942 A.2d 769 (2008) (“In reviewing a trial court’s evidential ruling, an appellate court is limited to examining the decision for abuse of discretion.”).

Prior to closing arguments, plaintiffs’ counsel sought permission to convey to the jury that defendants did not call as witnesses some of the persons on their witness list, and that the jury could draw an inference against defendants on that basis. Defendants’ counsel replied that defendants could make a similar argument because plaintiffs had not called all of their witnesses. The trial court indicated that it was not inclined to permit plaintiffs’ argument and counsel agreed to abide by the court’s ruling.

After defendants presented their closing argument and complied with the court’s ruling, plaintiffs’ counsel in summation made several comments concerning defendants’ failure to present certain witnesses or to introduce rebuttal experts to challenge the testimony of plaintiffs’ numerous experts. Near the end of plaintiffs’ summation, the trial court interrupted and instructed the jury to disregard counsel’s comments.

[Counsell—you’ve stated several times now that people weren't brought in to challenge certain designs, certain equipment, certain costfs), and so forth on down the line.
The complaint, I will charge the jury, is brought by the plaintiffls). The plaintiffls) [have] the burden to prove their complaint.. There is no burden on the part of the defendant!s[. They need not produce any witnesses whatsoever. They can rely on cross-examination and so forth.
So to draw an inference supporting the plaintiffls’] case because somebody was not produced here is unfair. It’s wrong. Please disregard if. Follow my instruction.

Plaintiffs’ counsel offered no objection and then completed his summation. However, during jury instructions, plaintiffs argued that the court’s comments were prejudicial. The trial court disagreed, noting that both parties had previously agreed not to discuss the decision not to call certain witnesses.

We find no abuse of discretion in the trial court’s limitation on plaintiffs’ counsel’s comments regarding defendants’ failure to call certain witnesses. As the trial court noted, defendants were not *394required to produce any experts, and the burden of proof was upon plaintiffs to establish that defendants breached the contract. The trial court’s comments were a correct statement of the law.

V.

The judgment of the Appellate Division is affirmed in part and reversed in part. We remand for the trial court to reconsider the reasonableness of the attorneys’ fee award, after the retrial of the issue remanded by the Appellate Division, in accordance with the principles pronounced herein.

Former Justice Stewart Pollock was appointed Special Master.