Tips for Working with Damages Experts to Establish Lost Business Value

Assessing and measuring economic damages in commercial litigation typically requires the testimony of an expert witness. Economic damages are often assessed in terms of lost profits or lost business value. Before retaining an expert, be sure to familiarize yourself with the key concepts regarding the lost business value theory of damages and the related role of the damages expert.

Role of the Damages Expert

Economic damages represent the measurement and amount of a monetary award sufficient to compensate a plaintiff for losses resulting from the defendant’s alleged conduct. The measurement of damages is predicated on the specific causes of action (e.g., breach of contract, tortious interference, or unfair competition) and the available remedies afforded by relevant case law or statute (or both). In seeking a damages award, a plaintiff must prove the underlying elements of both liability and causation, though in most instances a damages expert’s assessment of damages is based on an assumption of liability, subject to proof of liability through lay witnesses and documentary evidence. For a damages expert, damages are measured under the “but for” predicate, meaning what would have occurred “but for” the defendant’s alleged conduct.

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