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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ti ...