Commercial Litigation

Whitley Penn provides analysis, advice, and expert testimony to attorneys and clients involved in commercial litigation.  Our professionals are equipped to assist with the complex financial and economic issues that arise in various commercial disputes, including but not limited to shareholder and partner disputes, contract and transaction disputes, intellectual property disputes, business interruption cases, bankruptcy litigation, fraud and forensic litigation, loss/damage determination, and lost earnings calculations.  Whitley Penn provides consulting services as well as expert witness services in this area.

As a consultant, Whitley Penn team members may assist an attorney in understanding the facts and circumstances as well as the unique accounting nuances of the case.  We may also assist with trial strategy and financial analysis.  Our team provides valuable assistance to attorneys and clients by examining complex data and presenting it in an easy-to-understand format.

Generally, the ultimate goal in commercial litigation is to make the harmed party whole through an award of quantifiable losses.  Our team evaluates claims for economic loss in a broad range of commercial disputes for both plaintiffs and defendants.  Examples of losses include lost profits, loss of business value, and increased costs incurred as a result of a bad-act by the defendant wrong-doer, such as a breach of contract.  The challenges underlying this analysis rest in the fact that the lost profits must be reasonable and must be computed using reliable factors without undue speculation.

Whitley Penn provides expert damage analyses for the plaintiff side of a case.  We use generally accepted methodologies to compute losses including the “before and after” method and the “yardstick” method to develop the “but for” damage assessments.  Under both of these methods, we must consider other factors that could have affected the plaintiff’s performance issues and be able to demonstrate that all other factors have been taken into consideration while quantifying the damages attributable to the wrong-doer.

Our team also provides expert analyses for the defendant side of a case.  When retained by the defendant, we assess and rebut opinions of opposing experts.  This analysis often includes pointing out errors in the opposing experts’ damage calculations, determining mitigation opportunities, and quantifying the amounts of damages that are the result of alternative theories outside the control or actions of the defendant.

Whitley Penn professionals are well versed in the litigation and trial process and have testified as experts in federal district courts, state courts, tax courts, and courts of claims, as well as before domestic and international arbitration panels.  Our work with leading law firms places Whitley Penn at the forefront of damages theories and decisions.  We assist clients throughout the entire litigation process—from the decision to file, through trial, and onto post-trial motions.  Our team provides clients and their counsel with the following litigation support services:

  • Assessing the magnitude of potential liability and damages for strategic consideration;
  • Conducting interviews and fact-finding related to discovery;
  • Preparing interrogatory and deposition questions on financial and economic topics;
  • Formulating and executing theories and methodologies related to economic damages;
  • Preparing expert reports and demonstrative exhibits to communicate conclusions in a precise, yet concise and easy to understand, manner;
  • Examining and critiquing opposing damages claims and the opinions of opposing experts;
  • Identifying, indexing, and controlling case documents;
  • Assisting with direct-examination and cross-examination of opposing experts and fact witnesses;
  • Analyzing financial records, transaction data, and relevant market and industry information; and
  • Providing expert testimony at deposition and trial.

Whitley Penn professionals possess a unique combination of expertise in finance, accounting, and economics along with deep experience in delivering analyses in the litigation context, equipping them to present clear, concise, and convincing presentations of economic damages issues in a variety of complex commercial disputes, including but not limited to:

  • Antitrust;
  • Breach of contract;
  • Breach of fiduciary duty;
  • Business interruption;
  • Consumer class action;
  • Employment disputes;
  • Fraud;
  • Insolvency and bankruptcy;
  • Intellectual property;
  • Product liability;
  • Professional liability;
  • Quantum meruit;
  • Real estate disputes;
  • Shareholder disputes;
  • Tortious interference; and
  • Unjust enrichment.

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