Selecting Expert Witnesses For Economic Damages
Tom Pastore
Seasoned provider of litigation support and expert witness testimony for economic and financial issues | Business Valuations | Financial Opinions | Transaction Advisory Services | Fairness & Solvency Opinions
Selecting the right expert in litigation involving economic damages is one of the most important tasks for attorneys and their clients.?Economic damages can be in several forms, including but not limited, to the following:
1.?????Lost profits to plaintiffs
2.?????Disgorged profits from defendants
3.?????Reasonable royalties on misappropriated intellectual property (“IP”)
4.?????Cost to create IP
5.?????Business goodwill loss in California eminent domain matters
6.?????Lost compensation from wrongful termination or personal injury
7.?????Forensic accounting of misappropriated cash and other assets
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Obtaining thoroughly analyzed precisely calculated economic damages is crucial to presenting your case to judges and juries. Additionally, the damages must be supported by documented research showing the independent, unbiased, and relevant work of the expert.?An experienced expert with a long tenure of performing various economic damages analyses fits the bill best.?However, this is often not enough.?Over the past few years, court case deadlines have become increasingly tighter with more discovery documents produced.?It is essential that the expert’s firm has a deep bench of professionals and research technology investment to meet deadlines efficiently and effectively.
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For state law cases, the court-accepted form of economic damages can vary by each US state (and even county by county within a state). For federal law cases, court-accepted damages can vary in each circuit.?Seasoned experts will know this and meet with client legal counsel immediately to go over the statutes and relevant case law governing the form or forms of economic damages.?Failure to do so has resulted in the exclusion of experts’ opinions?with corresponding disastrous results for clients.
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The work product presentation format also varies by US states (and counties within a state) and if the lawsuit is in Federal court.?Federal courts require a Rule 26 narrative report format explaining the expert’s relevant research, analyses and opinions.?For these matters, in addition to technical expertise, the two other crucial success factors are the expert’s excellent writing skills and experience across a variety of litigation matters.?On a state-by-state/county-by-count basis, some require an equivalent of the Rule 26 report while others require only schedules with calculations.
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Finally, in front of judicial officers and juries, it is all about the presentation. The expert should have deep experience preparing graphic charts succinctly and impactfully supporting all opinions.?While testifying, it is vital to speak confidently but not arrogantly, explaining in enough detail without rambling too long.?During cross examination, and often in deposition, the expert must know how to defend all opinions without appearing defensive or self-doubting.
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Bottom line takeaways.?Select experts and their firms who possess:
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Mr. Pastore is Chief Executive Officer and Co-Founder of Sanli Pastore & Hill, Inc.?He has been involved in financial consulting for more than 30 years, specializing in intellectual property and intangible asset valuation, damages analyses, acquisitions and mergers, due diligence, investment and financial analysis, litigation consulting and public accounting. Mr. Pastore has served as an expert witness in federal and state courts for business litigation cases in California, Texas, Arizona, Wisconsin, Nebraska, North Dakota and New York.?He has testified in 70 trials and over 200 depositions. Extensive experience encompasses valuing numerous businesses in a wide range of industries including high technology, biotech, fintech, manufacturing, energy, banking & investment management, start-up, retail, services, and holding companies.?