How to Effectively Use Expert Testimony to Prove Damages in Commercial Litigation: Winning Strategies for 2020
Expert witnesses play a significant role in proving damages in commercial litigation cases. With strategies continuously emerging in an ever-dynamic legal landscape, plaintiffs involved in such cases are ensured with higher chances of winning. However, because of its frequent use, experts must always put forward credible damages studies that can withstand blows and questions from the opposition. This calls for plaintiffs and litigators to have a deep understanding of the strategies to maximize the effectiveness of these testimonies.
In this LIVE Webcast, a seasoned panel of thought leaders and professionals brought together by The Knowledge Group will provide the audience with an in-depth analysis of the recent developments in proving damages in commercial litigation. Speakers will also present the important issues surrounding this significant topic including the best strategies to effectively use expert testimony to prove damages.
Key topics include:
- Trends in Commercial Litigation
- When and How to Use Expert Testimony
- Calculation and Quantification of Damages
- Effective Strategies to Prove Damages
- What Lies Ahead
Ken Mathieu, CPA/ABV/CFF, Vice President, Forensic Services
Charles River Associates
- Trends – More alternative dispute resolution and use of experts in mediations and arbitrations
- Early involvement of expert to assist in resolving the dispute
- Selection of Expert
- Appropriate credentials
- Impressions on approach to case
- Use of Expert
- Strengths and weaknesses of a case
- Deposition prep
- Assess opposing parties positions and expert opinions
- Measures of damages
- “But For” Concept
- Types of Damages / Remedies:
- Monetary Damages
- Monetary Damages
Eric N. Macey, Partner
Novack and Macey LLP
- Are you really an expert?
- The dictates of Daubert and Kumho Tire
- Various methodologies accepted
- Can you rely on another expert’s opinions?; Can you use staff to assist with your work?
- Garbage in/garbage out – the issue of using accurate inputs
- Do accounting principles matter?
- E. Relying on client data
- F. The most important criterion for effective expert testimony
Sid Jaishankar, Managing Director
Duff & Phelps
- Use of the Written Expert Report as an Effective Tool
- Content – Organization / Structure
- Instructions from Counsel
- Inputs from another expert (e.g. market/technical, etc.)
- Scope of Review
- Respectful of Opposing Expert
- Reconciliation/Quantification of Issues at Dispute
- Content – Organization / Structure
- Preparation for and Delivery of Examination-in-Chief
- Know your report – the “trial binder”
- Familiarity with Productions
- Preparation with Counsel (as appropriate)
- Preparation for and Effectiveness Under Cross-Examination
- Revisit “Reconciliation/Quantification of Issues at Dispute”
- Assess strengths/weaknesses of competing positions in “grey areas”, by issue
- Both in isolation and in conjunction with others
- Attend and listen to testimony of Opposing Expert
- Review trial transcripts of key fact witnesses
- Provide fulsome answers where “yes/no” is misleading
- Yield where appropriate (particularly in hypotheticals put to you)
Who Should Attend:
- Commercial Litigation Attorneys
- In-House Counsel
- Financial Executives/Officers
- Forensic Accountants
- Top-Level Executives
Eric N. Macey is a founding partner of Novack and Macey LLP, a sophisticated business litigation boutique. He has extensive trial experience in state and federal courts throughout the country, as well as in various alternative dispute resolution settings. His clients consist of a wide range of business corporations and institutions, investment ventures, closely-held companies, partnerships and individuals. Mr. Macey is consistently rated as one of the top 100 Lawyers in Illinois per Super Lawyers, is recognized by Chambers USA for commercial litigation, is named on Best Lawyers Magazine’s “Best Lawyers in America” list for commercial and real estate litigation, and was selected by Best Lawyers as the “Lawyer of the Year” in 2017 and 2019 for real estate litigation in Chicago. Mr. Macey has also been an adjunct professor at Northwestern University Law School for many years co-teaching the “Discovery” seminar.
Mr. Macey received his A.B. (1973) magna cum laude from Princeton University. He received his M.A. (1975) in Communications from the Annenberg School of Communications, University of Pennsylvania, and his J.D. (1978) with High Honors from the George Washington University Law School where he was Order of the Coif and a member of the George Washington Law Review.
Eric N. Macey is a founding partner of Novack and Macey LLP, a sophisticated business litigation boutique. He has extensive …
Ken is regularly retained to serve as the expert witness for matters involving complex damages, accounting, and valuation issues. Utilizing his experience serving as a trusted advisor to entities facing a crisis, such as a high stakes litigation or government investigations, he provides credible and objective analysis and information to assist in mitigating the crisis and resolving the matter.
The results of his analysis are utilized by boards, insurance companies, courts, arbitrators, management, and government regulators to assist in making critical decisions.
He is a member of the American Institute of Certified Public Accountants (AICPA) and the Illinois CPA Society and has held leadership positions with both organizations. He currently serves as a commissioner on the National Accreditation Commission of the AICPA which oversees all specialty credentials issued by the AICPA. He is a frequent speaker on the topics of forensic accounting, valuation, and damages at industry conferences and educational forums. He has published articles for peer- reviewed journals and co-authored chapters in books widely considered reference guides for the forensic and valuation profession. He also served as the editor to AICPA Practice Aids for forensic professionals.
He is a CPA (licenses in Illinois and Louisiana), Accredited in Business Valuation by the AICPA, and Certified in Financial Forensics by the AICPA. He was previously a Managing Director with PwC’s Forensic Services practice where he held a leadership role and served as a GAAP expert.
Ken is regularly retained to serve as the expert witness for matters involving complex damages, accounting, and valuation issues. Utilizing …
Sid Jaishankar, CPA, CA, CFA, CBV joined Duff & Phelps in 2010. He is a Managing Director in the Toronto office and part of the Canadian Disputes and Investigations and Valuation Advisory Services practices. Sid has more than 15 years of experience in business and securities valuation, damages quantification and expert testimony.
Sid specializes in the areas of business and securities valuation and damages quantification. He hasprepared and critiqued numerous expert reports that have been accepted by various Canadian courts in respect of business valuation and damages quantification pursuant to a variety of dispute matters including, but not limited to, commercial, intellectual property, tax and securities litigation. He has also prepared valuation reports for non dispute purposes and has particular expertise in developing cost of capital estimates.
Sid Jaishankar, CPA, CA, CFA, CBV joined Duff & Phelps in 2010. He is a Managing Director in the Toronto …
Print and review course materials
Method of Presentation:
On-demand Webcast; Group-Internet Based
General knowledge of commercial law
NY Category of CLE Credit:
Areas of Professional Practice
NASBA Field of Study:
Accounting Technical - Technical
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About Novack and Macey LLP
Novack and Macey LLP is a sophisticated business and commercial litigation boutique that represents both defendants and plaintiffs in a wide variety of disputes, involving trial and appellate practice in state and federal courts and arbitrations. The Firm is known for representing clients in high-stakes business litigation, with a particular emphasis on financial services, commercial real estate, energy, gaming, manufacturing, closely-held companies and partnerships, and in representing other lawyers and law firms.
About Charles River Associates
Charles River Associates is a leading global consulting firm that offers economic, financial, and strategy expertise to major law firms, corporations, accounting firms, and governments around the world.
With proven skills in complex cases and exceptional strength in analytics, CRA consultants have provided astute guidance to clients in thousands of successful engagements. We offer litigation and regulatory support, business strategy and planning, market and demand forecasting, policy analysis, and risk management consulting.
Our success stems from the outstanding capabilities of our consultants, many of whom are recognized as experts in their respective fields; our close relationships with a select group of respected academic and industry experts; and from a corporate philosophy that stresses interdisciplinary collaboration and responsive service.
About Duff & Phelps
Duff & Phelps is the global advisor that protects, restores and maximizes value for clients in the areas of valuation, corporate finance, investigations, disputes, cyber security, compliance and regulatory matters, and other governance-related issues. They work with clients across diverse sectors, mitigating risk to assets, operations and people. With Kroll, a division of Duff & Phelps since 2018, the firm has nearly 3,500 professionals in 28 countries around the world.