Lost profits analyses also get more scrutiny from the courts


In Monday’s BVR teleconference “Use of Forensic Evidence in Lost Profits Cases,” attorney Jeffrey Diamond told the audience “over the years I’ve gotten smart.  I know what I don’t know. That’s why I hire good experts and them get in the driver’s seat with me to find all of the issues important in the case…your role as the expert helps us decide if we need to value the business and that is how we will capture damages.”

Co-presenter Rebekah Smith (GBQ Consulting, LLC) followed up with the reminder that a lost profits analysis will be subject to great scrutiny, with opposing counsel and the judge challenging the legal theories, assumptions, methodology, the expert’s qualifications, and evidence. The attorneys on the case will want to know what systems the expert has in place for gathering the relevant underlying evidence and applying the appropriate methodology. “This helps attorneys get past the obstacles in accepting you as an expert,” says Diamond.

The two presenters mentioned several important cases that illustrate the role of the expert, two of which are:

  • Nebraska Plastics Inc. vs. Holland Colors Americas Inc. (No. 04-2035 (8th Cir. 2005)) in which the court excluded the expert because the opinion “did not fit the facts.”
  • Marc Z. Edell v. Paula Edell (No. A-1695-02T5 (NJ App. 2005) in which the court found that the expert’s report had adequately supported and explained his opinion. The expert had cited numerous documents and gave detailed explanation of analysis and of alternative methods considered but not relied on.

The full text of these cases are available at BVLaw™. For more information on the teleconference transcript click here.


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