In connection with commercial litigation, it will often become necessary to hire a “damages expert.”
The damages expert will familiarize him or herself with the facts of the case and the underlying claim, and then develop an estimate of the value of the claim, also referred to as “damages.” A damages expert can be essential, and selecting the right damages expert can make all the difference.
So, one might ask, what to look for in a damages expert?
- First, it is important to select a damages expert who is experienced in being an expert witness, who already knows how to estimate damages, how to present the estimate in a written damages report, and how to provide testimony (in a deposition and thereafter in court) in support of that estimate. I don’t ever like to engage or hire anyone, for any assignment, job or project, who hasn’t had relevant experience and who hasn’t been successful in past assignments, jobs and projects. The expert should also have prior clients willing to speak on his or her behalf by giving a positive reference. It is so critically important to work with people who have “been there and done that” successfully and preferably repeatedly.)
- Second, credentials and professional associations are important. To be successful in commercial litigation, a party needs for the judge and or jury to believe what the party (and his or her damages expert) is saying and claiming. Credibility, or “believability,” as attorneys often refer to it, is essential. Credentials and professional associations go a long way towards establishing the believability or credibility of an expert witness. We live in a World full of lies and distortions. We live in a World full of people why deny facts and reality, sometimes over and over and over again as if repeating falsehoods or lies will make them true. So we live in a world where believability and credibility are increasingly both rare and important. Credentials and professional associations help to build believability and credibility of the damages expert.
- Third, any past record of the damages expert is important. Opposing counsel will often do their own research regarding a damages expert. Best do similar work yourself, before hiring/engaging a damages expert. For it is reasonable to anticipate that anything in the public record which might undermine or “impeach” the credibility of the damages expert will be unearthed and then used at the eventual trial.
- Fourth, always be sure that the homework is done and the groundwork is laid for the damages expert’s estimate, report and testimony. Every fact relative to the claim and to the damages resulting from the claim must be assembled for and reviewed by the damages expert if he or she is to be fully prepared in developing the damages estimate and then supporting it.
- Finally, and to me this may be most critical factor, it is essential to select a damages expert who can and will develop a cogent, clear, concise, and convincing estimate, and who can support that estimate with a clear and convincing expert report and expert testimony. I always prefer a damages expert who is clear and concise and can and will be unwavering and unflappable in his or her testimony.
In commercial litigation,the right damages expert can make all the difference.
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