Commercial Litigation Disputes: Which Experts to Call

Dani Alexis Ryskamp, J.D.

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— Updated on June 1, 2021

Commercial Litigation Disputes: Which Experts to Call

Commercial litigation is a broad category covering a vast range of potential disputes between businesses. As a result, any particular piece of commercial litigation may require the assistance of experts from an equally vast range of specialties.

Some types of commercial litigation are more common than others. As such, certain expert specialties are more frequently consulted. Common types of commercial litigation and the experts frequently retained in these contexts include:

Intellectual Property Disputes

Intellectual property ownership disputes will often benefit from the assistance of an expert witness. These disputes also include licensing, or infringement of copyright, trademarks, or patents matters. Experts in intellectual property cases may opine as to whether the property in question bears enough resemblance to determine infringement.

For example, a case alleging patent infringement may require an expert to explain how the offending item imitates or deviates from the patent’s description. Attorneys may also retain damages experts to explore issues related to the losses caused by an alleged infringement of intellectual property.

Breach of Contract or License

Contracts can be deeply complex, involving dozens or hundreds of pages of provisions. Licenses are a specialized type of contract and can also be complex. They spell out, in great detail, the precise circumstances under which the license can be used.

When a breach of contract or license is alleged, experts in that industry or topic area are crucial. They can be invaluable in aiding a fact-finder’s understanding of the nature of the breach. Plus, they can explain why the breach occurred and its repercussions on the parties involved.

Bankruptcy Disputes

Expert witnesses in bankruptcy disputes frequently include accountants, financial advisors, and assessors. Professionals in these fields possess specialized knowledge of finance and how to evaluate various types of assets. An expert witness with relevant experience can contribute to resolving questions about solvency or fraudulent transfers. Counsel may also call upon experts to discuss the feasibility of a proposed Chapter 11 reorganization.

Because bankruptcy proceedings differ in several key ways from other types of commercial litigation, it is essential to choose expert witnesses with experience in bankruptcy litigation. Alternatively, your expert must be able to quickly learn how bankruptcy court procedures may affect their testimony or written opinion.

Business Valuation Disputes

Property value is a recurring issue in non-bankruptcy cases as well. For instance, a business valuation dispute may arise during the sale of a business or business property. These disputes range from the proper way to determine the value of the business, its real estate, or other assets.

But different methods of valuation can produce different results. This is why counsel turns to the experts for an explanation on the calculation of a certain valuation. Plus, experts can discuss their methodology and how it’s regarded within the professional field. Business valuation disputes are just one case type where an expert’s clear, succinct explanation of a complex topic is invaluable.

Lost Profits or Damages

When a breach of contract or other event occurs, how badly does it affect the parties involved? Experts who specialize in determining the value of lost profits or other damages can help.

Like experts who focus on valuation, damages experts can explain the methodology utilized. The court may also need the expert to explain why certain methodologies are preferred. Additionally, they may be required to illustrate why one method is more appropriate than another to use in a particular case.

Employment and Labor Disputes

Employment and labor disputes may employ expert witnesses for a number of reasons. For instance, counsel may call on an expert to establish or challenge claims of economic damages. This is particularly relevant for cases in which “front pay” or future earnings are at stake. In cases alleging emotional damages, a mental health expert or vocational rehabilitation expert may contribute materially to clarify key issues.

Cases that involve claims of retaliation for whistleblowing may require an expert’s explanation on the underlying allegations of misconduct. For example, the plaintiff claims they were fired after blowing the whistle on a Sarbanes-Oxley Act violation. This case would benefit from an expert witness who can explain the violation and Act’s terms clearly.

While types of commercial litigation vary widely, many cases can benefit from the participation of an expert witness. Experts who can explain complex issues provide support to a case and aid a judge or jury in understanding the key facts at issue.


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