January 21, 2014 Articles

"Reasonable Certainty" Remains Uncertain

With such an ambiguous threshold, determining the extent to which damages opined by an expert rise to this level can be a puzzle.

By Neil Steinkamp and Regina M. Alter

Many legal and financial practitioners are facing increasing challenges on whether alleged damages have been proven with reasonable certainty. This article explores the theoretical and practical considerations of reasonable certainty of lost profits as a measure of damages.

Professional literature, court opinions, rules of evidence, and other bodies of knowledge and works of law often use the phrase "reasonable certainty" when discussing damages. However, the threshold for reasonable certainty remains ambiguous. It is important to note that this discussion does not define a specific checklist, mathematical formula, or mechanical manner of deducing whether damages opined by the expert are a reasonable certainty. No such specific mechanism exists that can be applied to all matters. Rather, this piece provides a discussion of the factors, elements, and characteristics of expert opinions that can generally be considered for any matter to determine the extent to which damages opined on by an expert rise to the level of reasonable certainty.

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