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How to Testify
Testimony About Damages
and Other Remedies
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Introduction
▪ In fraud cases, the bottom line for success is to
efficiently find, support, and recover an
appropriate remedy.
▪ Ultimate jury question: What sum of money, if
any, if paid now in cash, would fairly and
reasonably compensate the defendant for the
damages, if any, that were proximately caused
by such fraud?
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Steps to Calculate Damages
Identify
elements of
damages.
Identify
valuation
issues.
Document
damages for
presentation
in legal
proceedings.
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Identify the Damages
▪ Direct or general
damages
▪ Consequential or
special damages
▪ Punitive or
exemplary damages
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Direct or General Damages
▪ Out-of-pocket losses: Damages sufficient in
amount to replace what the perpetrator
wrongfully took or to repair what the perpetrator
wrongfully damaged
▪ Benefit-of-the-bargain losses: The difference
between the fair market value of the property
received by the victim and the value if the facts
had been as represented by the defendant
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Consequential or Special Damages
▪ Lost profits
▪ Opportunity costs
▪ Mitigation expenses
▪ Reliance expenses
▪ Incidental expenses incurred in the
transportation, care, and custody of goods or
property
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Consequential or Special Damages
▪ Loss of use
▪ Consideration or compensation paid
▪ Lost time
▪ Lost credit or damage to credit reputation
▪ Mental anguish
▪ Court costs and costs for trial preparation
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Punitive or Exemplary Damages
▪ Awarded in addition to
actual damages
▪ Awarded to punish the
wrongdoer and deter
others from similar
misconduct
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Punitive or Exemplary Damages
▪ Criticized by some as a windfall to the victim
▪ Calculations are based on some multiple of the
actual damages
▪ Calculations can be related to the economic
circumstance of the fraudster
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Identify Valuation Issues
▪ Expert testimony and industry-accepted
valuation standards
▪ Lost profits
▪ The time of valuation
▪ Future damages and discounts to present value
▪ Interest
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Expert Testimony and Industry-Accepted
Valuation Standards
▪ Valuation testimony generally requires that the
witness be established as an expert.
▪ Market information is usually inadmissible
hearsay unless it is gathered and relied upon in
the opinions of a qualified expert.
▪ It is necessary to identify and follow any
available professional or industry standards that
are applicable to the valuation issue at hand.
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Lost Profits
▪ Lost profits can be a loss related to a particular
venture, a segment of business, or the entire
business.
▪ Considerations in calculating lost profits:
• Performance history
• Market information
• Alternatives
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The Time of Valuation
▪ Fraud damages are usually valued as of the
time of the fraud.
▪ Market fluctuations can cut both ways in terms
of the amount of recoverable damages.
▪ Appreciation can be overcome in cases where
lost profit damages are appropriate.
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Future Damages and Discounts to
Present Value
▪ If any element of damages extends into the
future, the expert must carefully delineate the
amount of such damage element attributable to
the future.
▪ Factors used to discount the component of
future damages to present value typically
include analysis of the time value of money and
applicable risk factors.
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Interest
▪ Interest calculations
generally not part of
fraud damage
calculations
▪ Pre-judgment interest
▪ Post-judgment
interest