Calculating damages in litigation is a specialty within business valuation, which is really to say it’s a niche within a niche—and it’s one that many BV professionals are eyeing as a potential growth opportunity, especially now, when a litigation boom looks certain during these times of economic bust. There is much to be said about having solid business appraisal experience to assist you in determining damages. “But it gets you nowhere if you do not adhere to the Federal Rules of Civil Procedure, or if your conclusions are thrown out due to a successful Daubert
challenge," says Bo Brustkern
, principal of Arcstone Partners in Denver, Colorado.
“Both the expert appraiser and the trial attorney must keep a number of key factors in mind when establishing damages calculations in a case,” says Brustkern, who just finished two intensive expert witness training programs in Chicago, a day-long American Society of Appraisers
course and the National Association of Certified Valuation Analysts
week-long litigation boot camp. His top five takeaways from the training could help define or refine your efforts to excel as a litigation expert:
Expert witness report serves as direct testimony.
A strict interpretation of Rule 26(a)(2)(b) of the Federal Rules of Civil Procedure
limits evidence introduced in court to that which is actually written or displayed in the report. That means your report must be court-ready and contain all the content needed to establish (or refute) alleged damages.
- Prioritize your information request. In a perfect world, all of the data you request to calculate damages will be available and delivered on a timely basis. Practically speaking, however, prioritize your requests by importance. Establishing damages will be difficult, if not impossible, if that essential information is unavailable.
- Read the depositions and interrogatories. They provide invaluable information about the case, and will help refine your understanding of damages. The result will be a more robust opinion and a more thorough and defensible report.
- Daubert challenges are both real and unpredictable. Even the most respected business appraisal experts have lost Daubert challenges. Don’t underestimate the possibility of your report being thrown out.
- Be the educator. Litigation can be a long, complicated adversarial “truth contest,” and the jury desperately wants someone they can trust: They want a witness for the truth. However, the truth will not appear on its own; expert witnesses must “reveal” it in their testimony and their reports. So do great work. Follow the rules flawlessly. Then stand by your work, speak clearly and confidently, and you will do well by judge and jury.
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