Insightful Practices for Damages Case Presentations in Commercial Litigation

Importance of building a strong damages case, starting early, understanding basic timelines, utilizing the "But For" world concept, components of damage claims, legal theories for damages, and considerations for time periods in litigation.

• Commercial Litigation
• Damages Case
• Legal Theories
• Litigation Strategies
• Effective Presentations

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1. Its All About the Money, Money, Money: Best Practices for Building the Damages Case Presentation to: Arent Fox Commercial Litigation Group By: Martin Cunniff (Arent Fox) Kris Boushie (Stout/Risius/Ross David Paris (Stout/Risius/Ross) March 12, 2014 LA / NY / SF / DC / arentfox.com

2. Importance of the Damages Case Very important to client Informs decision to pursue or settle case Helps to determine appropriate level of effort Can effectively decide the case 2

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4. Why Start Early? Iterative process Need to get specific information Time to create overall story or themes Ability to recover from missteps 4

5. Basic Timeline Expert reports Pre- trial Discovery starts Depositions Trial Complaint Response 5

6. Starting with the But For World But For world is what would have happened absent the breach/tort/infringement Investigate all types of damages or loss before pigeonholing into legal theories For plaintiffs, every day is a sunny day in the But For world For defendants, every day is a rainy day in the But For world 6

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9. Components of the Damage Claim Compensatory damages Pre- and post-judgment interest Attorney s fees Costs Punitive damages Statutory damages 9

10. Basic Legal Theories Lost profits Out-of-pocket loss Diminution of value Disgorgement Quantum meruit Price erosion 10

11. Time Period Starting point limitations apply? Ending point in the future? Discounting time value of money? 11

12. Defenses Mitigation Statute of limitations Consequential Limitations on liability New business rule Economic loss rule 12