Three common approaches, and the assumptions that decide the number.
Esshaki Legal Media TeamCurrent as of March 2023
Damages are proved by expert modeling in most substantial commercial disputes,
and the model’s structure determines both the figure and its vulnerability.
Lost profits. Revenue that would have been earned but for the wrong, less
avoided costs. Requires a but-for world, and its credibility rests on the
baseline — historical performance, comparable businesses, budgets prepared
before the dispute, or a yardstick from unaffected operations.
Benefit of the bargain. The difference between what was promised and what
was received, common in acquisitions where the target underperformed the
representations.
Unjust enrichment or disgorgement. The defendant’s gain rather than the
plaintiff’s loss, available for some claims including trade secret
misappropriation and breach of fiduciary duty. Requires apportionment between
the gain attributable to the wrong and that attributable to the defendant’s own
contribution.
Reasonable royalty as a floor in intellectual property and trade secret
cases, derived from comparable licenses or a hypothetical negotiation.
Discount rates and pre-judgment interest frequently move the result more
than the underlying projections and receive far less attention.
Common attacks. Failure to deduct avoided costs; double counting across
theories; projections inconsistent with contemporaneous business plans; and
extending the damages period beyond any period the plaintiff could have
sustained the business.