While the vast majority of jurisdictions have moved away from the new business rule and adopted the modern new business rule, by which new/unestablished businesses can recover damages, such adoption does not diminish the requirements under the reasonable certainty standard. Given the lack of historical financial performance data and under the lens of the reasonable certainty standard, estimates of lost prof ...

Moral Victory: Plaintiff Wins the Battle (Causation) But Loses the War (Damages) AIG collapsed in the wake of Lehman’s bankruptcy filing and required a government bailout in order to avoid the same fate as Lehman. The plaintiff (AIG’s shareholders) contended that they were harmed by the relatively harsh bailout terms that were imposed on AIG but no other bailout recipients. The defendant (U.S. government) c ...

Avoiding Surprises Confidentiality is a cornerstone of mediation. But, how “confidential” is mediation? In this article, Nancy Yeend, a nationally recognized mediator, discusses the impact of the Uniform Mediation Act (UMA) and the various exceptions and levels of protection afforded to mediators and parties to a mediation. ...

In Economic Substance Analyses Valuation analysts and other financial advisers are often called on to perform economic substance analyses in federal income tax challenges. In these cases, the Internal Revenue Service challenges a tax deduction or loss related to a taxpayer transaction by applying the so-called economic substance doctrine. This doctrine allows the Service to disallow a taxpayer transaction i ...

Understanding the Magic Mediation is an exceedingly simple and yet extremely powerful dispute resolution process. Principles, process, and prerequisites coalesce to produce the magic of mediation. Those understanding the essential three “P's” of mediation benefit by becoming better negotiators, thus producing more satisfying results and enjoying higher settlement rates. ...

Part 1: Find Industry and Location-Specific Data Courts standards require that damages analysis results be within “reasonable certainty”, and objective rather than speculative. And while the terms “reasonable certainty” and “speculative” are more terms of art than science, given these standards, it is of vital importance to analyze all relevant factors to the extent permitted by the best data available. And ...

An Interview with Nancy J. Fannon and Jonathan M. Dunitz Nancy J. Fannon and Jonathan M. Dunitz co-edited The Comprehensive Guide to Lost Profits and Other Commercial Damages. In this interview, Fannon and Dunitz discuss the new edition and share their insights into the practice of lost profits and damages. ...

Tips for Selecting a Mediator Mediation provides an alternate means of resolving disputes. But how effective is mediation? Who should use mediation? In this article, Nancy Neal Yeend answers these questions and offers key points to consider when selecting a mediator. ...

Predicting Cyber Security Breaches Cyber security breaches often result in the improper transfer of personal identifying information or sensitive financial and health information. This article focuses on the identification of potential cyber security breaches and how courts are addressing the presentation of such cases, including the issue of damages. Read Identifying and Calculating Recoverable Damages in ...

Predicting cyber security breaches Cyber security breaches often result in the improper transfer of personal identifying information or sensitive financial and health information. This article focuses on the identification of potential cyber security breaches and how courts are addressing the presentation of such cases, including the issue of damages. ...

Handling lawyers who coax you to work from their summary of the evidence Expert witnesses have an ethical responsibility, as well as a business imperative, to ensure they review the actual evidence that supports their analyses. Because expert witness testimony can make or break litigation outcomes, consultants cannot risk having their testimony excluded by the trial judge or discredited by the jury. ...

Ways to prevent costly misunderstandings One of the most important documents valuation, forensics, and litigation support experts produce is the engagement letter. Just as you painstakingly explain what your firm plans to do, it’s also imperative to explain what the client needs to do. ...

Limiting the potential for abuse and delay Discovery can reduce the costs of litigation, but it can also be used to harass and delay. There are a number of things that counsel and a forensic professional can do to limit the misuse of the discovery process, save costs, and lead to a settlement. ...

What discount rate should you use? Economic damages in litigation must be reduced to present day dollar values to avoid over-compensating the Plaintiff for harm caused by the defendant. This article explains present value theory in simple terms and addresses different methodologies used in reducing future economic damages to a present day dollar value. ...

A good start for a forensic accounting engagement Statistical data is commonly presented in litigation reports. The data provides valuable information to test the hypothesis. This article provides an introduction of how some statistical techniques that are readily available can be used in practice. ...

The Expert’s Role The article offers the comments of one expert on how the courts (judges) could improve the end process. ...

Anticipating questions allows us to think through the best ways to phrase our responses Questions about an expert’s skills and work can be phrased in ways that make it difficult to answer accurately on the spot, but advance preparation can smooth the process. ...

Good communication skills are essential for the expert Witness Expert witnesses and litigation support professionals generally do not consider the importance of communication skill training and practice as part of their preparation process. Communication is the third leg of expert witness preparation and separates the average witness from the great witness. ...

Forensic accounting examinations of not-for-profit entities The keys to performing a successful expert forensic accounting fraud engagement is to gain an understanding of the present internal control system, including policies [or lack thereof] in place to prevent fraud and abuse, as well as other key steps and procedures, as John J. DeLuca outlines in this article. ...

Management techniques from new China Sun Tzu, the ancient Chinese warlord, wrote the military treatise titled The Art of War. On a lighter note, similar 21st century business management techniques can be found in fortune cookies. ...