This week, GLS Capital Vice President Mick Biehl wrote an article for ALM/Law.com to help litigators maximize damages in commercial litigation cases. As a litigation funder who assesses a broad spectrum of cases, Mick shared his unique perspective, as we frequently observe plaintiffs in commercial litigation fail to maximize their potential recovery because of overly conservative expert assumptions, overlooked categories of damages, or missteps in securing prejudgment interest.
To avoid these pitfalls, Mick suggests plaintiffs’ counsel should work closely with expert witnesses to ensure damages calculations are both aggressive and well-supported. As the article notes, “the exchange of expert reports…is a time for plaintiffs to put forth their most aggressive damages calculations—not to err on the side of caution.” Additionally, developing multiple damages models can help mitigate the risk of exclusions or challenges during trial.
Beyond standard damages, Mick specifies that attorneys should also consider less obvious but material losses, such as mitigation costs and opportunity costs. For example, a plaintiff “may be forced to borrow money at an increased cost of capital” or “lose additional contracts or opportunities” due to a defendant’s actions.
Finally, Mick explains how prejudgment interest can significantly impact recovery, especially in long-running cases. Since interest rates vary by jurisdiction, Mick proposes that attorneys strategically evaluate where to file a suit. “Variations in state laws governing prejudgment [interest] present a meaningful strategic consideration that attorneys should not overlook when choosing a forum in which to file.”
By implementing these strategies, plaintiffs’ counsel can better position their clients for maximum financial recovery in commercial litigation.
Read the full guide to maximizing damages in commercial cases (Law.com subscription required):