CD: In your experience, what are the key challenges to successfully evaluating the value of damages in relation to a commercial dispute?
Jackman: One of the most challenging aspects of the evaluation of damages is obtaining complete and reliable data and information to be used as inputs into a damages analysis. In the event such information is unavailable through discovery, a damages expert must oftentimes devote significant time and resources into finding said information elsewhere, such as the public domain. Should this information not be available elsewhere, the damages expert must then seek to obtain reasonable and reliable proxy information. This process can not only drive up the cost of an expert’s services, but depending on the quality of information available to the expert, it can also negatively impact the reliability and accuracy of his or her measurement of damages.
Lamb: To build on this, I would stress that the condition the data are in when they are produced to the expert can impact the process of evaluating damages. For example, I recently worked on a case dealing with real estate brokerage commission rates where the produced datasets contained many different fields that appeared to contain commission rate data, yet there was no clear indication as to which of the fields was the appropriate one to use for our analysis, as no clarifying information was otherwise available. In this instance, had these commission fields been clearly identified in the data, we could have selected the correct one and continued on with our analysis. However, given the uncertainty we faced, we had to undertake an extensive comparative analysis of these data to determine which were the appropriate to use before we could continue on with our damages analysis.
Oct-Dec 2014 issue
Nathan Associates Inc.