How AI is Reshaping Litigation for Better and Worse AI remains a flawed practice companion. In addition to the possibility of hallucinated case citations and incorrect legal analysis, the use of AI introduces data privacy concerns and risks misadvising individuals due to overly generalized AI conclusions. In this article, the author addresses the following: Does the use of AI in litigation represent true artificial intelligence, or is it artificial interference preventing a just outcome? Artificial intelligence (AI) is rapidly transforming the modern-day legal landscape, offering tools for research, drafting, fact development, document review, expert services, jury selection, and even predicting…
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Don’t Say That! What is protected communications in one jurisdiction might be discoverable in another. Yet, many expert witnesses draft e-mails as if their words will never see the light of a courtroom projector. The author shares what she has experienced and makes suggestions. Words live forever, especially when they are typed into e-mails during litigation. As an expert witness, your casual Monday morning thoughts could become Thursday’s courtroom exhibit, projected on a screen for all to see. The discoverability rules governing expert communications vary significantly across jurisdictions.[1] What is protected in an arbitration in Michigan might be fair game…
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Are You Prepared for the Outcome? What can parties in a litigation case do when the experts come to differing opinions of value? The authors share ways that parties and counsel can reconcile the differences or at least reduce the value gap. It sounds great—if the valuation experts can resolve their differences, a trial might be avoided, saving time and money. This strategy is not without peril, and clients may even find themselves unexpectedly bound by an agreement or terms they did not expect. This article covers what ensues when opposing legal counsels agree for the experts to meet, including…
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A Sampling of What Construction Law Attorneys Say They Expect from Experts This article provides a summary of what attorneys, who are members of the Minnesota construction law section, heard at a recent CLE regarding what attorneys expect from experts. On June 13, 2023, Michael Gregory attended the Minnesota State Bar Association Alternative Dispute Resolution Section regarding the topic of “Solve the Problem! Survey Recommendations for Effective Dispute Resolution Through Mediation and Arbitration” by Dean B. Thomas and Julia J. Douglas. These attorney-authors solicited the entire attorney population engaged in construction law. Background associated with this presentation and these authors’…
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A Review of the Basics for Lost Profits (Part I) Those who have worked in the forensic field for many years begin to take for granted how we approach and handle certain situations. We have a level of knowledge and experience that lets us move forward without much research. But, with this level of experience and understanding comes a level of forgetfulness. Not that we forget how to perform the analysis, but we forget why we need to perform an analysis a certain way. I believe it is good from time to time to stop and ask, “Why do we…
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Experts Beware… Financial experts that handle construction defects claims should be familiar with the doctrine of economic waste, the potential limitations on a damages claim, and recognize the potential of this doctrine arising in a damages engagement. The author shares how this doctrine may arise and what to look for before accepting a damages engagement. “Economic waste is the label that courts have adopted as justification for not awarding an aggrieved party the cost of performance as damages for breach of a construction contract”.[1] This topic generally arises when a repair in a construction defect matter requires significant reconstruction or,…
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Opportunities Available to Drive Revenue and Remain Relevant Q1 2020 is already in the books. If you are thinking about your practice development goals, strategies, and tactics for the rest of the year, Rod Burkert has some ideas regarding what to do and identifies the opportunities associated with five options. Hard to believe that Q1 2020 is already in the books. And you might be thinking about your practice development goals, strategies, and tactics for the rest of the year. What we can achieve (goals) and how we achieve it (strategies and tactics) will be affected by forces that influence…
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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 containing a body of knowledge on the best practices for developing “but for” revenues and revenue growth issues in lost profits models. Later articles will deal with Chapter 2 (Costs) and…
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February 2019—U.S. Tax Court on Valuation of Conservation Easements and Expert Testimony The U.S. Tax Court issued two valuation decisions in late December 2018 that may be of interest to QuickRead readers. The opinion is 116 pages long and delves into what is a qualified real property easement that qualifies for a charitable deduction, and the 36-page memorandum provides guidance regarding how the court weighs expert witness testimony in this area of easements. On December 27, 2018, the U.S. Tax Court issued two lengthy decisions: an opinion and memorandum decision that focus on what is a qualified real estate easement…
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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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Five Signs That We Need to Part Ways With a Client How do we know when it’s time to cast off a client or referral source? In this article, Rod Burkert shares five tell-tale signs that suggest it is time to have a break-up talk.
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Highlighting Recent Delaware Court Cases In this Case Law Update, three recent Delaware Court cases are reviewed. Two cases focus on whether the deal value is fair value and the third focuses on matters discovered following approval of a merger and who has standing to sue and what remedy, if any, is available to the disgruntled plaintiffs. The first two cases also delve into the role of experts, inputs that are used in the DCF (and usually contested), and the role of board members overseeing the process, as well as the value of process itself discovering price. The third case…
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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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A Study of the Experts’ Inputs and Court Opinion How does a court go about deciding a valuation case when two experts oppose each other? The author examines the DFC Global Corporation decision to see what that reveals and how that may impact an expert’s future engagement. The author finds three takeaways for readers.
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Valuation of Intangible Assets Valuation practitioners may want to spend a few hours reading a recent U.S. Tax Court case where the valuation of intangible assets was squarely addressed. This QuickRead article highlights the facts and three issues addressed in the decision.
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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.
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The Expert’s Role The article offers the comments of one expert on how the courts (judges) could improve the end process.
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In re Bachrach: the U.S. Bankruptcy Court comments on the discounted cash flow and experts’ reports The discounted cash flow analysis (DCF) has been a standard valuation and damages method for many years. However, a U.S. Bankruptcy Court recently suggested that the “striking” disparity between experts’ conclusions in a case before the court “lends credibility to the concept that the discounted cash flow method is subject to manipulation.”