Some damages experts describe themselves as specializing within specific industries, such as a construction damages expert. Others self-identify based on the type of damages analysis they typically perform such as intellectual property or labor. However, many experts are afraid to identify themselves as “generalists,” fearing they will be viewed as not having much expertise in any particular damages area. However, using a seasoned generalist damages expert can offer a number of benefits for the client and their outside counsel. Some of these benefits include the following:
A comprehensive or holistic perspective: Seasoned generalist damages experts have a strong understanding of the types of damages a party can incur, their underlying causal relationships, and the applicability of alternative methodologies to address the damages question. They are attuned to assessing and evaluating the damages framework, such as how much control management has in responding to disruptions in normal operations due to a physical or contractual event; as well as identifying the drivers and measures of the revenues, costs and investments that result in financial impact. This breadth of knowledge and insight allows them to develop and evaluate multiple scenarios of impact – both knowable and projectable – relevant to the dispute.
Flexibility and adaptability: Seasoned generalists are skilled at analyzing and quantifying damages across a range of industries and legal contexts. As such, they can adapt their expertise to different case facts and circumstances. They are also likely to have worked closely with a wide range of industry and in-house experts, making them more practiced at translating technical and/or market fundamentals into their downstream financial impacts.
Logistical efficiency: The versatility of a seasoned generalist expert can be a boon in matters involving multiple types of damage measures or changing claims/counterclaims. Rather than shoehorning multiple specialized experts into an evolving damages landscape, the generalist, by knowing the reach of their spheres of expertise, can advise counsel when to bring in a more specialized damages expert and help get them up to speed quickly. Generalists can be extremely valuable in the initial assessment of a case. They can help determine which specialized experts, if any, are needed for more in-depth analysis.
Mediation and Settlement Negotiations: In mediation or settlement negotiations, a generalist can be skilled at finding common ground and crafting agreements that address various aspects of the dispute.
In summary, a seasoned generalist damages expert can be an extremely valuable asset to a litigation team. While such experts may invest in a particular practice area based on their professional upbringing or in response to current events, the seasoned generalist will also convey, in a compelling manner, the breadth and depth of their experiences so as to demonstrate the additional utility they can provide to litigants and their counsel. By vetting these generalist disclosures, a client or attorney can make informed decisions about retaining a damages expert who can provide wide-ranging value to their legal matter.
About the Authors
David J. Ottenbreit is a Director with Chess Consulting LLC. For over 25 years, Mr. Ottenbreit has analyzed business operations and financial conditions, determined appropriate damage theories, as well as addressed claims for lost sales and profits, increased costs, reasonable royalties, diminution of shareholder and business entity value, unjust enrichment, and lost wages and compensation. He also has performed investigations of fraud allegations, including employee embezzlement and government contractor false claims allegations. Mr. Ottenbreit has been retained as an expert in damages analysis in federal and state courts and arbitration. Mr. Ottenbreit earned a Master of Science degree in economics from Baylor University. He also holds professional certifications in business valuation (Certified Valuation Analyst) and fraud examination (Certified Fraud Examiner).
Rodney J. Bosco is a Director with Chess Consulting LLC. Over the past 40 years, he has conducted economic impact assessments and their underlying causes pursuant to disputes, investigations, business valuations, and regulatory proposals. Measures of economic impact have included profits, cash flow, enterprise and shareholder value, personal and household earnings, royalties, out-of-pocket costs, over- and under-payments, and risk-adjusted present value conversions. Mr. Bosco – whose work has been used to proffer expert testimony in federal and state courts, in arbitrations and before a subcommittee of the U.S. Congress – has a Master of Arts Degree in Economics from the University of Michigan and holds professional certifications in financial forensics, business valuation, and fraud examination.