• July 18, 2013


Photo by Alan Melancon

Photo by Alan Melancon

As mentioned in an earlier Minnesota Litigator post this week, sometimes civil litigators spend a bit too much of their energy on proving liability rather than on establishing damages.  There are likely many varying causes for this attention deficit but law school training (that is, the lack of it as to damages) is one.  Also, maybe liability — associated with fault, blame, responsibility, integrity — seems sexier than bean-counting.  Finally, damages can be analytically opaque (how is one to truly “analyze” the appropriate compensation for pain and suffering?) or complicated (simple v. compound interest (see this decision at pp. 41-44) is the tip of the iceberg).  In other words, while many liability cases do not really need an expert, any moderately complicated civil litigation needs a financial expert.  But, particularly in smaller cases, counsel and litigants overlook the need and/or are very reluctant to spend the money.

So what do they do?

Often they “fudge” it and it can come back to bite them.

In property disputes under Minnesota law, a property owner is deemed “competent to express an opinion on the market value of his or her property.”  To the extent a wronged property owner has no training in valuation, this, under Minnesota law, is a matter of cross-examination rather than admissibility of evidence.

The reasoning behind this rule seem fairly clear.  Property owners, as a general matter, come into ownership through purchase or trade so, from this, they should have some understanding of value.  Furthermore, this rule favors the wronged property owner by lowering the cost of bringing a lawsuit.  Finally, self-serving and over-reaching opportunists will face the wrath of the fact-finder, whether it is the judge or the jury.

But, finally, be forewarned that a homeowner’s bare assertion that the damage to her home was $X,000 might seem quite unpersuasive, as it obviously seemed to the trial court in the linked case.  The trial court awarded $100 in damages.  The Minnesota Court of Appeals reversed and remanded this week.  But even though the plaintiff has won reversal and will have another go-round to prove damages, surely one would want the trial court to get it right the first time, which might have meant a greater focus on this element of a plaintiff’s case had been called for.

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