Economic Damages and Lost Profits Expert Witness Services
Executive Summary
Economic damages and lost profits opinions often determine the dollars at stake—and can shape settlement posture long before trial. When a claim turns on financial impact, the court and the opposing expert usually focus on three core questions:
• What would the business or individual have earned “but for” the alleged wrongful conduct?
Economic damages expert witness services help counsel and decision-makers move from a narrative (“we were harmed”) to a defensible damages model that can be tested, challenged, and explained. The strongest analyses are transparent: they show the baseline, show the adjustments, show the offsets (saved costs and mitigation), and show sensitivity ranges so the trier of fact understands what drives the result.
This article walks through common dispute settings, accepted frameworks used to quantify economic harm, the documents that matter most, and the most frequent attack lines raised in depositions, Daubert/Frye challenges, mediation, and trial. The goal is not to “pick a number,” but to present an objective, replicable analysis grounded in the records.
When This Issue Arises
Economic damages analyses are most commonly requested when a party alleges financial harm that must be translated into dollars using accounting records, operational data, and reasonable assumptions. Typical settings include:
Breach of contract and commercial torts
Allegations of wrongful termination of a contract, delayed performance, supply failures, misappropriation, interference, or unfair competition can involve claims for lost profits, lost revenues, incremental costs, and sometimes diminution in business value. The key issues usually include causation, the period of harm, and whether the claimed losses are speculative or supported by historical performance.
Business interruption and insurance disputes
Disasters, equipment failures, cyber events, and other interruptions often lead to disputes over period-of-restoration sales shortfalls, extra expense, and saved or avoided costs. These matters frequently require careful separation of (a) deferred sales versus permanently lost sales and (b) incremental margin versus gross revenue shortfall.
Employment and compensation disputes
Wrongful termination and employment disputes can require lost wage/back pay/front pay calculations that incorporate mitigation, benefits, variable compensation, and worklife expectancy assumptions. Even where the dispute is about a business, wage data and labor-market assumptions can become important model inputs.
Shareholder, partnership, and ownership disputes
Ownership conflicts can involve claims for diverted profits, excessive compensation, related-party transactions, and damages tied to buyouts, freeze-outs, dilution events, or alleged oppressive conduct. These cases often require close coordination between transaction tracing and damages modeling.
Accepted Methods and Frameworks
Economic damages expert witness services generally rely on accepted frameworks that connect the alleged conduct to an economically grounded “but‑for” baseline. The best approach depends on the dispute theory, the quality of available data, and the duration of the alleged harm. Common frameworks include:
Before-and-after (time-series) analysis
Compares performance during the alleged harm period to one or more baseline periods, adjusting for known changes (pricing, capacity, seasonality, inflation, macro conditions). This approach is often persuasive when the business has stable historical operations and the harm period is clearly bounded.
Yardstick / benchmark analysis
Uses a comparable business unit, location, product line, competitor, or industry index as an external benchmark for expected performance. This framework is commonly used when internal history is volatile, the business is scaling rapidly, or there is a clear peer group or industry index that tracks performance drivers.
Sales projection with incremental margin support
Builds “but‑for” revenue from contracts, pipeline, capacity, and market demand, then applies an incremental profit rate supported by cost behavior. This is often used in contract disputes where volumes are known (or knowable) and the main debate is margin and cost savings.
Cost-based and extra-expense models (when appropriate)
Some matters focus on incremental costs (extra expense to mitigate harm, cover purchases, replacement labor, expedited shipping) rather than—or in addition to—lost profits. A defensible model shows what costs were necessary, whether they were reasonable, and what portion is recoverable under the claim theory.
Discounted cash flow for damages extending into future periods
When the alleged conduct affects multiple future periods (or earning capacity), damages may be expressed as the present value of expected future shortfalls using a defensible discount rate, growth assumptions consistent with the facts, and clear treatment of risk.
Reasonable royalty frameworks (when applicable)
In certain IP or trade secret matters, damages may be expressed as a royalty derived from a hypothetical negotiation and supported by comparable licenses and economic factors.
Numeric example (lost profits with saved costs — illustrative only):
• Lost revenue per month: $335,000 − $237,500 = $97,500
Variable costs (food, hourly labor, delivery fees) decrease when sales fall. If cost behavior analysis supports that 62% of incremental revenue would have been consumed by variable costs, then saved costs are:
• Saved variable costs: $292,500 × 62% = $181,350
A defensible model explains (1) why the baseline is reasonable, (2) why the 62% variable-cost factor is supported by records, (3) what offsets apply (mitigation, substitute performance, “make‑up” sales), and (4) how uncertainty is communicated (ranges and sensitivities rather than a single unexplained figure).
What an expert witness typically delivers
Depending on the case posture and deadlines, typical deliverables include a damages model with workpapers, an expert report or affidavit, deposition preparation support, rebuttal analysis of the opposing expert’s model, demonstratives (tables/graphics) suitable for mediation or trial, and testimony that is consistent with the underlying records.
How opposing experts typically test a model
Opposing experts often stress-test baseline assumptions, recast margins, introduce alternative benchmarks, and challenge causation. Building a model with traceable inputs, clear definitions, and sensitivity ranges reduces the risk that the analysis will be characterized as speculative or result-driven.
Coordination with counsel and case themes
Economic harm is easier to understand when the model aligns with the case timeline and liability narrative. A clean chronology of key events (dates, operational changes, mitigation actions) helps ensure the damages period is defensible and the assumptions are not disconnected from the facts.
Quality controls and model validation
Well-supported opinions usually include basic quality controls: completeness testing (do the records capture all revenue?), cross-checks to bank deposits or processor data, tie-outs between sales detail and the general ledger, and reasonableness checks against capacity and industry benchmarks. Sensitivity tables (for baseline growth, margin, and discount rate) help the court see whether the result depends on a single aggressive assumption or remains stable across reasonable ranges. These steps also make deposition and trial testimony easier because the expert can explain how the model was tested and why alternative explanations were considered.
Documents and Data Checklist
Damages models are only as strong as the records supporting them. The following checklist reflects the types of information commonly requested early so assumptions can be tested and alternative explanations can be evaluated.
Pleadings, claims/defenses, and the specific damages theories being asserted
Expert disclosures and any prior damages calculations exchanged in the matter
General ledger detail and chart of accounts (including subledgers where available)
Monthly/weekly financial statements and management reports for at least 24–36 months surrounding the alleged harm period
Sales detail at the most granular level available (customer, product, location, channel), including returns/cancellations
Cost detail by category and support for cost behavior (fixed vs variable vs mixed costs)
Payroll registers, headcount, and compensation plans (when labor is a driver of margin)
Bank statements and merchant/processor reports (for completeness checks and revenue testing)
Operational KPIs (units, utilization, hours, conversion rates, capacity limits, backlog, churn)
Contracts, change orders, correspondence, and a timeline of key events tied to causation and the damages window
Mitigation efforts and constraints (replacement suppliers, substitute work, staffing changes, pricing actions)
Budgets, forecasts, board/owner communications, and lender packages prepared before the dispute (to test contemporaneous expectations)
Industry and macro benchmarks relevant to the business (indices, peer performance, seasonality drivers)
Tax returns and supporting schedules when relevant for consistency and normalization
Common Pitfalls and Rebuttal Strategies
Opposing experts and counsel tend to attack damages opinions on recurring themes: causation, baseline selection, cost treatment, mitigation, discounting, and transparency. Building the case with these attacks in mind reduces motion risk and improves credibility with the factfinder.
Unclear causation or an overbroad harm period
Attack: The alleged conduct is not the primary driver of the shortfall (market downturn, capacity limits, internal issues), or the damages window is stretched beyond what the facts support.
Rebuttal strategy: Tie period boundaries to contemporaneous documents; test alternative drivers; show sensitivity analyses and explain why the selected window is the most defensible.
Baseline that is optimistic, cherry‑picked, or not contemporaneous
Attack: The model relies on unusually strong months, ignores pre‑existing declines, or uses post‑event plans created for litigation.
Rebuttal strategy: Use multiple baselines when possible (historical + benchmark); explain adjustments; anchor assumptions to pre‑dispute budgets, lender packages, or other contemporaneous materials.
Double counting (or missing) costs
Attack: The model treats gross revenue shortfalls as profit loss, ignores saved costs, or applies a margin inconsistent with records.
Rebuttal strategy: Perform cost behavior work; tie out to the ledger; show how each major cost category was treated and why.
Ignoring mitigation, substitute performance, or “make‑up” sales
Attack: The claimant could have reduced losses through reasonable steps; some sales were deferred rather than lost.
Rebuttal strategy: Evaluate mitigation actions and constraints; separate deferred vs permanently lost sales; quantify offsets clearly.
Overstating growth or projecting beyond capacity
Attack: The “but‑for” scenario assumes growth that the business could not have achieved due to staffing, equipment, supply, regulatory, or market constraints.
Rebuttal strategy: Tie growth assumptions to capacity evidence, contracts, hiring plans, and historical conversion rates; use conservative ranges where constraints are uncertain.
Unsupported present value / discount rate treatment
Attack: The discount rate is selected without a coherent rationale, risk is double-counted, or inflation and growth are inconsistent.
Rebuttal strategy: Explain how risk is treated (cash flows vs discount rate); cross-check rate assumptions; maintain consistency across discounting, growth, and terminal assumptions.
Black‑box spreadsheets and missing workpapers
Attack: The math cannot be replicated; inputs are not traceable; model changes are undocumented.
Rebuttal strategy: Maintain transparent schedules; trace key inputs; use version control; show step-by-step calculations for the key drivers.
FAQs
What is the difference between lost profits and diminution in value?
Lost profits measure profit shortfalls over a defined harm period. Diminution in value measures a reduction in the value of the business, often tied to expected future earning capacity.
Do lost profits equal lost revenue?
No. Lost profits typically equal lost revenue minus saved or avoided costs, adjusted for offsets such as mitigation and substitute performance.
What records matter most when proving damages?
Contemporaneous accounting records, granular sales detail, cost support, and documents establishing causation and the harm period are usually the most persuasive.
How do experts handle incomplete books and records?
They test completeness using bank/processor data, triangulate with operational metrics, and document assumptions and limitations transparently.
How is a “but‑for” scenario created?
It is built using historical performance, benchmarks, and known business drivers, then adjusted to isolate the effect of the alleged wrongful conduct.
What makes damages testimony credible to a jury?
Clear causation logic, transparent math, conservative and supported assumptions, and the ability to explain the analysis in plain language under cross‑examination.
Sources
Before publishing, verify that external links are appropriate and functional. Keep total external links to five or fewer.
Federal Judicial Center — Reference Manual on Scientific Evidence (expert evidence considerations): https://www.fjc.gov
U.S. Bureau of Labor Statistics — wage and employment data used in economic loss contexts: https://www.bls.gov
AICPA — Forensic and Valuation Services resources and professional guidance: https://www.aicpa-cima.com
NAFE (National Association of Forensic Economics) — resources related to economic loss in injury/death matters: https://www.nafe.net
Contact the team at Joey Friedman CPA PA to discuss your economic damages or lost profits expert witness needs.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Outcomes depend on specific facts and circumstances.
