Litigation Advisory Through Valuation Economics
"Litigation Support" will waste your time if you Google it – the examples are like a wastepaper basket: a collective noun into which a lot of things are thrown. In an age when valuation professionals are trying to expand their service lines, litigation support has been a fast and lucrative option, with many trade organizations offering training and certification in the topic area. However, do not confuse the amateurs with the professionals. The ability to provide clarity in the litigation process extends far beyond the experience and capacity of most individuals providing litigation support services. Our litigation support services have been battle-tested for over 50-years and have rich and diverse experience. The total of the claims of cases we have had involvement in during that time is literally in the trillions of dollars and extends from small residential disputes to large complex counseling and litigation such as the Exxon Valdez oil spill. Whether it is providing aid in the courtroom, in a deposition, trial preparation, mock trials, assisting witnesses prepare for trial, or nothing more than a quick brainstorming phone call, we are here to offer our insight and experience to you. Some of the specialized service includes:
Pre-litigation: Every lawsuit is preceded by a period of time before damage occurs or is recognized. The most successful litigation outcome is the outcome from litigation that never occurs. Avoiding litigation begins with understanding where risks exist or are likely and determining how they can be avoided or mitigated. We have helped numerous clients and their management in such evaluations. If possible or probable litigation events occur, they need to be addressed quietly and professionally, usually with specially formed teams charged with assessing the situation, identifying options, exploring how they best can be addressed, determining risks and rewards, and aiding in creating strategies that will guide decisions. When litigation is inevitable, often there are preliminary steps a party can take before an action is filed that will enhance a party's likelihood of prevailing. At this stage we work with clients to help them with such things as assessing the risks and possible outcomes of litigation, forming an expert team, identifying likely opposing experts and what their opinions will likely be, helping to identify actions that could resolve or reduce the harm that a party would suffer, developing political and media strategies, helping a client retain the right legal counsel, and many other services. The goal of pre-litigation is to resolve an issue before it becomes a litigated dispute or change the playing field and thus reduce the costs and risks while enhancing the outcome.
Mock Trials/Litigation SWOT: Knowing the strengths and weaknesses of your case is essential in high-stakes complex commercial litigation. Are you going to have a problem with your own expert? What is the opposing expert's vulnerability? Will a slight change to your positioning in the case allow the facts to work for you stronger? Are legal counsel prepared to deal with technical issues, legal issues, and specific witnesses? When it comes to the valuation economics component of your case, we also work with legal teams and designated experts to identify their weaknesses and enhance their effectiveness.
Second opinions: Let's be honest, we love this stuff. We're always happy to take a look at any valuation economics issue and throw in our two cents. Whether we are asked to do nothing more than a cursory read of a legal brief or an expert report, we happy to do so and usually can provide something of benefit in doing so. We can both establish that there are no conflicts and then learn in the process.
Damage Theory: Damages calculations are something that valuers contribute to regularly but tend to do so without adequate knowledge of relevant principles and procedures. Damage calculations are not commonly taught in appraisal courses or examined in professional certification and/or licensure. Those who have received supplemental education regarding the theory of damages typically receive only rudimentary instruction on the topic. In a legal world that is ruled or heavily influenced by Daubert, some looking to establish themselves in niche areas of valuation for expert testimony purposes have published articles to "establish expertise and knowledge through publication," That doesn't make what they say accurate, but it doesn't take long before "best practices" can become improperly established. The result is a valuation profession that regularly mishandles damage calculations and its overall theory. Daubert should not be a crap-shoot. Courts can make mistakes, but competent presentations by lawyers and expert witnesses helps to avoid error.
With over a half-century of experience in litigation and damage calculations, we have seen too much error and are here to provide you the background story on issues or witnesses affecting your case and help guide you to a defensible and proper valuation economic theory for your case. We can as work with witnesses, as witnesses, opposing witnesses, provide consulting advice, arbitrate, or mediate in this process. From pre-judgment interest, to environmental claims, to contract and partnership disputes, our knowledge on damages is deep.
Relevance: One of the biggest problems in litigation, when it comes to work of expert witnesses, is the issue of relevance.
Does it look impressive? Does it look authoritative? Don't be deceived, because it is not relevant if the underlying question is, "is the four-legged creature crossing the road a dog or a horse?" You might be shocked, but we see expert reports which offer seemingly brilliant analysis but fail to address the actual question. As a result, we see investors make bad decisions, disputes failing to get settled, or judges and juries become so confused they yield unfavorable verdicts. We can work with your experts as peers to verify that they understand the issues and that their reports squarely deal with the question at hand so that their work is relevant. Verifying the relevance of an economic analysis or valuation is not a task that should be taken lightly. That which may appear relevant isn't necessarily so. We are here to help you make that determination.
Getting a Court to Reverse Itself: Not happy with a ruling the court has made or are you concerned the judge is not seeing things your way? There may be something you can do about that. We are successful in developing strategies to respectfully and gracefully help judges revisit issues. We've even helped obtain opinion reversals at the appellate level, dramatically changing outcomes of litigation in the process.
Prejudgment Interest: Prejudgment interest is an important and often under-appreciated and misapplied component of a damage calculation. Far too many courts and legal counsel on each side simply do not understand what prejudgement interest really is and how it should be calculated. Some get too much and others get too little. In either case justice is not done. Will this issue be properly addressed in your case? Let us help you ensure that it will.