How to win a bad trial?

Guilty but not responsible.

A damage is reparable only if it is directly linked to a fault, quantifiable, and certain: It is therefore possible to be guilty of a fault without being responsible for its compensation.

That’s why it is possible—and often highly effective—to criticize opposing claims not only on the fault but also on the quantum of the harm.

If the plaintiff fails to provide a solid quantification of the harm, they may be dismissed from their claims for compensation by the judge (even if they succeed in proving the defendant’s guilt).

While the critique of damage quantification is particularly effective when conducted by a private expert, there are some simple and effective strategies that anyone can employ to neutralize an unfounded claim for damages

A four-stage criticism

Following the best standards in the field, a critique of damage quantification operates on four levels:

  1. Adherence to fundamental principles of justice;
  2. The methodology of quantification;
  3. Mathematical accuracy;
  4. The robustness and relevance of sources and supporting documents.

The principle critiques

The principle critiques aim to demonstrate that a quantification violates fundamental principles of justice and, as such, is not admissible in court. In our opinion, the most effective critiques focus on three principles:

  1. Adherence to the adversarial principle: This principle requires that the quantification be based on figures accessible to the opposing party (ideally annexed to the expert report, like other pieces of evidence) and developed enough to be reconstructed by the opposing party. The defendant’s objective is not to criticize the substance of the expert report or the amount of quantification but to highlight its lack of probative value. Non-compliance with the adversarial principle can be raised at various levels, some very straightforward (Is the calculation method explained? Are the calculations detailed? Is the quantification supported by annexes?), while others are more complex (Is the presentation of facts sufficient to ensure the complete relevance of the chosen quantification method?).
  2. Full compensation for the suffered harm: This principle requires quantifying “all harm, nothing but the harm” and disqualifies any amount that would include damages unrelated to the fault or double-counted damages (a common pitfall in practice). A few simple questions usually suffice to identify a violation of this principle: Is the causation of each category of harm linked to an alleged fault established? Does it seem that the same damage has been quantified within two different categories? Does the opposing report specify the deduction of any insurance premiums received following the alleged harm, and has the factual situation been exhaustively considered? Have future damages been properly discounted? Have potential losses of opportunities been identified and probabilized within the quantification?
  3. Respect for the parties’ intent / foreseeability of the harm: Under French law, the recoverable damage is limited by its certainty and, therefore, its foreseeability. A damage arising from a contractual breach cannot be claimed if it was not foreseeable at the time of contract formation

Methodological critiques

The methodology of a quantification corresponds to the way in which the principles mentioned above are applied to a specific case, focusing essentially on the choice of assumptions, tools, and quantification methods.

Similar to the critique of the proper application of principles, methodological critique delves into highly technical points, such as the use of an inappropriate valuation method, as well as more glaring errors, such as quantifying a lost profit based on revenue rather than variable cost margins, or confusing discounting with capitalization.

Concerning the choice of assumptions, in a critical approach, it is particularly interesting to reperform the quantification to test its sensitivity to each chosen assumption. By doing so, it becomes possible to direct the critique towards the most influential assumptions in the opposing quantification (for example, the quantification of future harm is highly sensitive to the discount rate)

Mathematical critiques

A quantification of harm fundamentally corresponds to a series of calculations. It goes without saying that mathematical errors can be detrimental to a quantification.

Beyond basic arithmetic operations, errors can be detected in the use of formulas or more sophisticated models.

The critique of sources

Just as it is necessary to produce evidence supporting the lawyer’s conclusions to demonstrate a fault, it is necessary to produce the sources of a quantification for it to be admissible.

Not all documentary sources are equal. Operational data used should ideally be contradictory between the parties or come from third parties in the trial.

Financial data used should ideally come from financial statements certified by an accountant or an independent auditor, or at the very least be reconciled with them.

Market data, finally, should come from reputable institutes (IMF, INSEE, etc.) or recognized actors (Bloomberg, Xerfi, Médiamétrie, etc.).

Note that in some cases, the necessary data is not available as it is held by the defendant. It is therefore better to attack other aspects of the quantification, or risk facing an injunction to disclose the held documentation.

In a nutshell :

The critique of harm is extremely effective and sometimes sufficient to dismiss a legal action.

It is particularly powerful when it demonstrates that the damage is not quantifiable in absolute terms (or should be quantified at a negligible amount).

These are practices that we implement within our litigation department.

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