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 discounting lost profits.
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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 dispute. Considering what is at stake, it therefore behooves litigators to be exquisitely careful and circumspect in their expert witness retentions and due diligence practices. In this article, the authors discuss surprises that may arise and how those may affect the…
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Often the Link Between Damages and Causation Even with established liability, a plaintiff seeking damages must be able to calculate damages with reasonable certainty and demonstrate a causal link between the defendant’s acts and the plaintiff’s injury. The concept of causation is simple—did a defendant’s wrongful act cause the plaintiff’s damages? Proving causation, however, is not always as simple. Many times, damage experts simply assume causation. However, courts sometimes reject a finding on causation, and therefore the resulting damages, when an expert fails to consider alternative factors that could have caused or contributed to the plaintiff’s damages. Accordingly, a damage…
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This is the final installment of the four-part series highlighting some of the key investigation issues and findings of the Examiner’s report. In this article, the author explores the claim that CEC inappropriately elected to close the Showboat Atlantic City casino and diverted its customers to Harrah’s Atlantic City casino.
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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 determine whether an expert witness’ testimony during trial should be admitted into evidence.
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Marketplace Platform for Aspiring and Experienced Litigation Support Professionals Until now, a lawyer could not put out a call for help with a single case description and submit that to one, a dozen, or an entire community of relevant subject matter experts simultaneously with the single push of a button. Until now, an expert might have to choose between paying for advertising to be listed in a directory and/or set up their own website in the hope that additional expert witness consulting work would flow to them. The Exchange’s marketplace offers a different paradigm and value proposition. This has been…
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Reliability of Client’s Data This article discusses how experts can handle the unique situation of receiving unreliable data. Litigation and appraisal literature will be reviewed as will the author’s handling of unreliable data in a recent lost profits case. In the end, warning signs will be reviewed to alert the expert to potential problems with the projected data.
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In Measuring Trustee Breach of Fiduciary Duty Damages (Part II of II) The second part of this article focuses on the methodologies employed to quantify the economic damages when a fiduciary breach is claimed.
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In Measuring Trustee Breach of Fiduciary Duty Damages (Part I of II) The prudent investment of trust assets can minimize the potential for trustee fiduciary litigation risk, in addition to maximizing the trust beneficiaries’ economic interest in the trust. However, trust beneficiaries may initiate a breach of fiduciary duty tort claim when they feel that the trustee has breached any investment management fiduciary duties to the trust. For trust beneficiaries, and their legal counsel, who have brought breach of fiduciary duty tort claims against a trustee, one of the issues is how to measure the “damage” to the beneficiaries because…
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On Patent Damages and Apportionment In two recent cases, the U.S. Court of Appeals for the Federal Circuit provided important guidance when applying apportionment principles to calculate reasonable royalty damages. See Finjan, Inc. v. Blue Coat Systems, Inc., 879 F.3d 1299 (Fed. Cir. 2018); Exmark Mfg. Co. v. Briggs & Stratton Power Products Group, LLC, 879 F.3d 1332 (Fed. Cir. 2018). The Federal Circuit signaled greater flexibility when apportioning damages, which may permit using the royalty rate and not just the royalty base, to value a patented invention’s contribution to a larger, multicomponent product. The Circuit also reaffirmed, however, that…
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What is Your Case Worth Today? What is the value of a contested estate? In this article, the author shares her insight and discusses two leading U.S. Tax Court cases in this area, Estate of Lennon and Estate of Foster.
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Case Study of a Real Estate Developer For most lost profits cases, the losses begin at the date of the harmful act and end when the injured party is returned to the position it would have had “but for” the alleged damaging act of the defendant. However, not every lost profit matter is a breach of contract where beginning and ending dates can be easily defined. Sometimes losses may not occur until a period in the future. This situation requires the expert to assess the facts of the case and anticipate the market and economic environment when calculating these future…
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Debunking Myths and Getting the Numbers Right The author discusses various methods used to trace property; techniques that are used in connection with marital dissolutions.
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Factors to Consider Finding the Right Mediator Mediation is a dispute resolution process that is now more popular than arbitration. Many contracts require parties use mediation, if a dispute arises; and courts have adopted the use of mediation to help reduce the number of cases headed to trial. Yet with all this popularity, there remains a significant problem with using mediation: getting the “wrong” mediator. Selecting the “case appropriate mediator” saves resources and increases the probability of settlement. This article’s focus is on what to consider when selecting an appropriate mediator.
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As the temperature drops and the holidays creep in, case after case either settles or, even better, is granted a three-month continuance. Now you finally have the time to take a long hard look at the lessons you have learned this year, lessons you have applied from years past, and start defining next year’s conquest(s), whatever they may be. This fourth article of the Unimpeachable Neutrality series discusses how the lessons learned help to define and conquer the next 365 days
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Unsecured Creditors: Risk and Cramdown Rates (Part II of II) This is the second of a two-part article, read Part I here. In October 2017, the Second Circuit Court of Appeals handed down its decision on cramdown interest rates in the matter In re: MPM Silicones, LLC. This decision has already stirred a great deal of discussion regarding cramdown interest rates to be paid secured creditors in Chapter 11 bankruptcy matters. Numerous articles have appeared on-line discussing the impact of this decision. These articles follow in a long line of literature on cramdown hearings and secured creditors. Conversely, little has…
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Unsecured Creditors: Risk and Cramdown Rates (Part I of II) This is the first of a two-part article. In October 2017, the Second Circuit Court of Appeals handed down its decision on cramdown interest rates in the matter In re: MPM Silicones, LLC. This decision has already stirred a great deal of discussion regarding cramdown interest rates to be paid secured creditors in Chapter 11 bankruptcy matters. Numerous articles have appeared on-line discussing the impact of this decision. These articles follow in a long line of literature on cramdown hearings and secured creditors. Conversely, little has been written about impaired…
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The Case of the Delayed Real Estate Development In a situation where there is a claim of wrongdoing and one party suffers pecuniary damages, it is incumbent on the economic damages expert to precisely define the period of such claimed damages to properly quantify them. The outcome is largely dependent on the expert’s processes for determining damages, the components of the Expert Report, and the ability to remain unbiased and issue opinions independent of the client’s interests.
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Practical Applications in Unimpeachable Neutrality Expert witnesses in the fields of forensic accounting, matrimonial litigation, and business valuation must possess a thorough understanding of the applicable standards, case law, evidentiary rules, and regulations specific to each engagement to effectively help the court understand the facts and evidence. The already daunting task of interpreting these rules becomes increasingly fleeting when those parameters act as moving targets whose relevance or obsolescence may be subject to change in an instant based upon legal decisions, newly promulgated standards, or pronouncements. This third article from the unimpeachable neutrality series, discusses 10 time tested and unimpeachable…
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A Unique Assessment of Commercial Damages Business interruption is a form of commercial damages that may include both breach of contract and torts. While it is not common for financial experts to be hired in business interruption situations, some claims require their expertise. Unlike a traditional lost profit analysis, business interruption calculations are unique. Any expert asked to make such an analysis should consider lost profits (projected revenue for the loss period less saved expenses), non-saved expenses that are ongoing during the interruption, and extra or expedited expenses the business has to incur to reopen. This article addresses the work…