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It’s Only an Opinion

An Appraiser in Court This is a review of Henry J. Wise’s, MAI, CBA, BVAL, CRE (Retired) recently released book, It’s Only an Opinion: An Appraiser in Court. In this book, comprised of 23 chapters, Mr. Wise is not only humorous but also insightful. He shares several nuggets from his 35-years of experience testifying in court on real estate controversies. He offers valuable information to business appraisers ...

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Lost Profits

Modern New Business Rule and How it Has Been Applied by the Courts Earlier this year, the author published two articles that appeared in QuickRead discussing calculating lost profits and defense responses for lost profits calculations in cases falling under the modern new business rule. The foundation for the article on defense strategies was an article published by Victor Goldberg. Following publication, t ...

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How Can I Tell the Right One?

Selecting a Mediator is More Important Than Ever, Or? Mediation is the primary case management device used by the courts to resolve disputes, and the mediation process is frequently included in the dispute resolution section of most contracts. In some situations, mediation is even mandatory. What is interesting to note is that there are no uniform, national standards for training or regulating mediators. So ...

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Economic Damages

in Not-for-Profit Entities There is an established body of knowledge that addresses economic damages in connection with for-profit organizations, but little about how these concepts apply to not-for-profit organizations. In this article, the author sets forth how those concepts apply to charitable organizations. “You will be much more in control, if you realize how much you are not in control.”―Benjamin Gra ...

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The Intersection of Advocacy and Financial Forensics

The Role of the Expert in 21st Century Dispute Resolution—A Recovering Judge’s Perspective As technology evolves, the role of the expert and the interplay between experts and the judiciary will evolve. This change is already underway. In this article, QuickRead presents the presentation made by Retired Judge Platt at the NACVA and the CTI’s Annual Consultants’ Conference, held in Salt Lake City. Judge Platt ...

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Improving the Probability

Of a Successful Negotiation It does not matter if you are going to be involved in direct negotiations or negotiating a settlement during mediation, the key is to determine the answers to five critical questions. In this article, Nancy Neal Yeend shares the five critical questions and answers that must be addressed to successfully negotiate. It does not matter if you are going to be involved in direct negoti ...

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What Constitutes Best Evidence?

Attaining Reasonable Certainty in Economic Damages Calculations (Part III of III) The purpose of this article—the third of three (Part I and Part II) on this topic—is to provide the reader with an understanding of Chapter 3 (What Constitutes Best Evidence) of the 2018 Practice Aid as well as certain other publications containing a body of knowledge on the best evidence to support economic damages in a court ...

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What to Consider When Divorcing Parties Have

Ownership Interests in Privately Held Companies This article focuses on concepts and issues that are important for family law attorneys to understand when navigating cases that involve divorcing clients with ownership interests in privately-held entities. One of the first questions that arises is whether we need to retain a valuation expert? This is an important question, where experts can provide attorneys ...

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Attaining Reasonable Certainty

in Economic Damages Calculations (Part II of III) The purpose of this article—the second of three on this topic—is to provide the reader with an understanding of Chapter 2 (Costs) of the 2018 Practice Aid as well as certain other publications containing a body of knowledge on the best practices for developing “avoided or saved costs,” sometimes referred to by the courts as incremental costs. A prior article ...

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Attaining Reasonable Certainty

in Economic Damages Calculations (Part I of III) The AICPA has issued two practice aids, one on 2015 and most recently in November 2018, focused on the calculation of economic profits and damages. The purpose of this article—the first of three on this topic—is to provide the reader with an understanding of Chapter 1 (Revenue and Growth Rates) of the 2018 Practice Aid as well as certain other publications co ...

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Lost Profits, Modern New Business Rule

and Defense Strategies Beyond Reasonable Certainty Experts estimating lost profits under the modern new business rule know that lost profit estimates in these cases are held to a higher reasonable certainty standard than calculations for lost profits in cases with established businesses. Failing to meet this higher standard may cause an expert’s calculations to be ruled as speculative. To this level of grea ...

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Lost Profits: Fifth Circuit Decision Clarifies Reasonable Certainty

for the Modern New Business Rule A recent Fifth Circuit Court of Appeals decision has thrown additional light on the reasonable certainty standard used to assess lost profits for claims made by new or unestablished businesses. The decision helps put into perspective what information can and, more importantly, cannot be used to calculate lost profits for a new or unestablished business. While sometimes a dau ...

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The Evolving Landscape

of Patent Litigation Damages In the last 18 months, we have seen numerous decisions which will likely have a dramatic impact on the landscape of patent litigation damages. Two of the most impactful decisions, Apple v. Samsung and WesternGeco v. Ion Geophysical, made their way to the United States Supreme Court. However, we will not see the true practical outcome of either of these hallmark decisions for man ...

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The Daubert Standard’s Impact

on Expert Witness Testimony Expert witness testimony has played a vital role in both criminal and civil trials in the United States. Testimony from expert witnesses constantly helps judges and jurors reach conclusions in controversial and complex cases. Therefore, the Daubert Standard is important to know and understand in general, and especially as an expert witness. The Daubert Standard helps courts deter ...

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The Expert Witness Exchange: Car Rentals, $16 Million

and an Expert Witness While there are hundreds of Daubert decisions issued every week, only a few go a long way in shaping the way experts are screened by judges in the future. And even fewer times, a multimillion-dollar verdict is hinged solely on the expert witness testimony! In this article, the author discusses the district and appellate court decision in Alaska Rent-A-Car v. Avis Budget Group. ...

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The Pink Elephant in the Courtroom

Un-Impeaching Opinions of Calculated Values Valuation or calculation? That is the question asked, answered, and argued by judges, experts, lawyers, and industry thought leaders apropos to whether a calculation of value can be used in litigation. The answer echoed throughout courtrooms across America thus far is a resounding “it depends.” This article offers a synopsis of the debate over calculation engageme ...

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Overview of the But For Investment Portfolio

To Measure Trustee Breach of Fiduciary Duty Damages The but for investment portfolio is a tool that damages analysts utilize to estimate economic damages when there is an allegation of a breach of fiduciary duty with regard to the management of an investment. In its simplest form, the but for investment portfolio estimates the value of a portfolio but for the alleged breach of fiduciary duty. Case law prece ...

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Buyers and Sellers Can Benefit from Use of Earnouts

Must Know Accounting Rules Earnouts are often used in transactions to bridge the gap between what a buyer is willing to pay up front and what a seller wants in the way of total compensation to complete a deal. Therefore, earnouts are typically constructed to allow the seller to enjoy additional upside if the acquired company reaches certain performance targets after the sale while providing the buyer with d ...

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Discounting Lost Profits to Present Value

Ex ante, Ex post, and Hybrid Methodologies January 2019 will be the twentieth anniversary of one of the seminal articles written on discounting lost profits, Peter Schulman’s Economic Damages: Discounting Concepts and Alternatives. This article addresses the concepts and complexities of discounting lost profits that were discussed in the Schulman article and advances and additional methodology for discounti ...

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The Expert Witness Exchange

Marketplace Platform for Aspiring and Experienced Litigation Support Professionals There is no disputing the influence that expert witnesses have on litigation outcomes—this much we know for sure. Their expertise is often relied upon by the court in rendering decisions, weighing the opinions, methodology, and, indeed, the credibility of the competing expert witnesses involved for each party to the legal dis ...

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