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Litigation support and quantification of economic losses

Valuators assist in measuring economic losses in the context of litigation claims such as loss of business resulting from patent infringements, breaches of contract or misrepresentations, business interruption claims for insurance purposes and personal injury lawsuits, where an individual’s earnings potential is significantly reduced either temporarily or permanently.

Business Valuator often works hand-in-hand with lawyers throughout an engagement, assisting with preparing questions for discovery, providing expert testimony in court as well as, rebutting opposition experts.

Quantification of economic damages is often needed in the following circumstances:

  • Personal injury
  • Family law disputes
  • Intellectual property
  • Commercial litigation including business interruption
  • Construction litigation

Personal injury

Civil litigation concerning personal injury is an action in tort. In a personal injury litigation, a valuator may be retained by either the plaintiff’s or defendant’s counsel as a damages expert to calculate the financial losses and assist in determining the present value of non-financial losses for the allegedly injured party (i.e., the plaintiff).

Financial losses include:

  • Income losses, including salary, pension, benefits, and other items available through one’s employment or self-employment
  • Future costs of care (e.g., medical services, attendant care services, equipment for rehabilitation)
  • Incremental out-of-pocket costs (e.g., attendant care, specialized medical care or mobility equipment, housekeeping or home maintenance, home renovations, medical aids, physiotherapy, pain therapy, Retraining costs if a change in career is required

Personal injury cases can result from motor vehicle accidents, acts of medical malpractice, slip and fall incidents, physical assaults, product liability, etc.

A valuator’s primary role in these circumstances is to quantify the economic loss suffered by the individual as a result of the injuries sustained.

Family law disputes

Family law has developed in recognition of the fact that marital breakdown is fairly prevalent in Canadian society, and often, the financial consequences that result from a divorce have a major impact on family members. Family law deals with the following issues:

  • Custody of children
  • Domestic contracts
  • Division of property on marriage breakdown
  • Rights of common-law spouses
  • Property rights on the death of a spouse
  • Child and spousal support

Specifically, a valuator may:

  • Assist with the discovery process
  • Provide forensic services related to possible hidden or undisclosed assets
  • Perform a valuation of a company, business, trust or other assets
  • Prepare or assisting counsel with the preparation of a financial statement
  • Advise on the cross-examination of a party or another expert
  • Estimate income for support purposes
  • Advise on the tax aspects of a proposed settlement
  • Act as a mediator or arbitrator
    Provide assistance in negotiations.

Intellectual property

Damages assessment in intellectual property disputes is an area where a valuator can often provide assistance to counsel. The rights of ownership of real property can be compared to the rights of ownership of intangible property. Regarding intellectual property, there are several distinct rights that can be transferred by way of a license or sale, including the right to manufacture, the right to use, the right to divulge, the right to lease, the right to sell, etc. Each right might be considered separately in an intellectual property transaction. Essential to the analysis of intellectual property held by a business is an understanding of each of these rights.

Intellectual property damages may relate to patents, copyrights, trademarks, trade secrets.

Commercial litigation including business interruption claims

The objective of business interruption insurance is quite simple: should a qualifying claim be made, the insurance company is to pay the policyholder’s lost profits and continuing fixed expenses so that, financially, the policy holder will be compensated for the loss suffered (i.e., a business will be compensated, up to the limits of the insurance policy, for the economic consequences resulting from an interruption of its normal operations).

Construction litigation

In construction litigation cases, the valuator is usually retained to quantify the losses suffered by a breach of a construction contract and to obtain the documents required to support a loss claim.
In addition, a valuator may be requested to perform one or more of the following tasks:

  • Review of calculations
  • Quantification of additional costs incurred
  • Verification of expenses
    Presentation/testimony of damage report for arbitration, mediation or at trial

Quantification of losses begins with an understanding of the costing system and accounting records of the contracting company or the land owner/developer. The valuator must clearly explain these items to counsel, as they will impact other areas of the claim.

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