Chapter 4
Developing Damages Theories and Models
4.1 Introduction
This book describes approaches, issues, and nuances associated with damages claims of many types—intellectual property, antitrust, government contracts, and accountant liability, to name a few—and provides guidance to practitioners involved in those types of cases. To set the context for a deeper understanding of these areas, this chapter provides a general framework for selecting a damages theory and developing a model to calculate damages. This chapter contains an overview of the various standards under which U.S. courts assess damages claims, summarizes the most commonly accepted damages theories and models, and describes accepted methods and damage elements that practitioners use in measuring damages claims.
Accepted damages theories and elements can differ widely between state and federal court systems, in different jurisdictions, and for various types of matters. We cannot cover all potential differences in this chapter. Practitioners should discuss the appropriate standards and elements of damages with counsel before investing time and effort on a wrong approach. Accordingly, this chapter provides a general framework to prepare an effective analysis and will help practitioners identify the right questions when they begin to assess damages.
Historically, based on the English court system, two types of civil courts existed in the United States: courts of law ...
