Litigation Support Agent

Cross-examination outline — Plaintiff's damages expert ($14M yardstick model)

The 6 weakest links in their methodology:

1. Yardstick selection — non-comparability. The 4 'comparable' companies almost certainly differ from plaintiff on size, growth stage, customer mix, vertical, or geography. Get them to admit on cross that they did not run a quantitative similarity test (e.g., regression of revenue per employee or growth-adjusted multiples) — they picked the comparables by qualitative judgment. Establish: 'You chose these four because they felt similar, not because you ran a statistical test of similarity.'

2. The 'but-for' world is speculative. Their model assumes the plaintiff would have achieved the yardstick companies' growth absent the breach. Walk through plaintiff's actual track record pre-breach — was plaintiff already underperforming the yardsticks? If yes (likely — that's why they're suing), the model overstates damages. Establish: 'Plaintiff's growth rate in the 24 months before the breach was X%. Three of your four yardsticks grew faster. How does your model account for that?'

3. No mitigation discount. Damages must reflect plaintiff's mitigation efforts post-breach. Find what plaintiff did post-breach (replacement customers signed, alternative GTM, pivot). The model typically gives zero credit. Establish: 'Did you reduce your damages estimate to reflect that plaintiff signed [X new customer] in [year+1]? No? Why not?'

4. Discount rate (or absence). Lost profits over 5 years must be discounted to present value at a defensible rate. Most yardstick models apply a too-low rate, or no rate at all. Ask: 'What discount rate did you apply to future damages? What's the basis for that rate vs the company's WACC or industry beta?' Many experts can't answer this credibly.

5. Tax effects ignored. Lost-profits damages are typically taxable as ordinary income. Did the expert net out the tax effect? Most don't, which overstates the after-tax loss. Establish: 'Your $14M figure is pretax. Plaintiff would have paid roughly $X in federal and state income tax on those profits. The actual after-tax loss is closer to $Y, correct?'

6. Time period — why 5 years? The damages period should be limited to a reasonable foreseeability horizon. Did the contract expressly contemplate a 5-year horizon, or is that the expert's choice? If it's the expert's choice, attack the duration. Establish: 'What in the contract or industry data supports your selection of a 5-year horizon rather than 3 or 7?'

Impeachment with their prior testimony / publications:

Search their prior expert reports and academic work. Specifically look for:

• Cases where they argued yardstick is unreliable (you'll find them — most experts have been on both sides at some point)
• Articles they wrote endorsing more rigorous methods (Daubert criteria they didn't apply here)
• Prior cases where their damages estimate was excluded or substantially reduced

Ask for their CV; cross-reference to public court records via PACER. If they were excluded under Daubert in a prior case, that's a fact you can establish on cross even if you can't get the underlying order admitted.

Tactical note: in this jurisdiction (assuming federal court), Daubert standards apply. You should consider filing a motion to exclude before trial. Even if you lose the motion, the briefing forces the expert to commit to a methodology you can then attack on cross. Want me to draft the Daubert motion or the cross-exam questions in deposition format?