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 one or more experts from an equally vast range of specialties.

    Since some types of commercial litigation are more common than others, however, certain experts are more commonly employed in this field than others. Common types of commercial litigation and the experts frequently retained in these contexts include:

    Intellectual Property Disputes

    Disputes over intellectual property ownership, licensing, or infringement of copyright, trademark, or patent may benefit from the assistance of an expert witness to explain complex subject matters. Experts in intellectual property cases may opine as to whether the property in question bears enough resemblance to definitely determine infringement.

    For example, a case alleging patent infringement may require the services of an expert to explain how the offending item imitates or deviates from the patent’s description. Damages experts may also be retained 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. As a specialized type of contract, licenses can also be complex, spelling 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 the specific industry or topic area covered by the contract or license can be invaluable in aiding a fact-finder’s understanding of the nature of the breach, why it occurred, and its repercussions on the parties involved.

    Bankruptcy Disputes

    Expert witnesses in bankruptcy disputes frequently include accountants, financial advisors, assessors, and others with 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. Experts may also be called upon to discuss the feasibility of a proposed Chapter 11 reorganization.

    Because bankruptcy proceedings differ in several key ways from many other types of commercial litigation, it is essential to choose expert witnesses with experience in bankruptcy litigation or who can quickly learn the ways in which the different rules and procedures of a bankruptcy court may affect their testimony or written opinion.

    Business Valuation Disputes

    The value of a property may be an issue in non-bankruptcy cases as well. For instance, during the sale of a business or business property, disputes may arise as to the proper way to determine the value of the business, its real estate, or other assets.

    Since different methods of valuation can produce different results, expert witnesses in business valuation disputes may be called upon to explain not only how a certain valuation was reached but also how the methodology used operates and how it is regarded within the professional field. Business valuation disputes are thus one example of a situation in which an expert witness’s ability to explain a complex topic clearly and succinctly can be invaluable to the case as a whole.

    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 from a particular business event can help resolve this question.

    Like experts who focus on valuation, damages experts may be required to explain the methodology chosen to determine the extent of lost profits or other damages. They may also need to explain why certain methodologies are preferred or 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, an expert may be required to establish or challenge claims of economic damages, particularly 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 also require the underlying allegations of misconduct to be explained to the fact-finder. For example, a case in which the plaintiff claims they were fired after blowing the whistle on a violation of the Sarbanes-Oxley Act may benefit from an expert witness who can explain the violation 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 clearly and succinctly can provide support to a case and aid a judge or jury in understanding the key facts at issue.