Page 58 - Acertaining Economic Damages Calculation

Chapter 3

What Constitutes Best Evidence

Introduction

Anyone conducting a study of economic damages in the courts will quickly come to understand that the
concepts of reasonable certainty and best evidence are inextricably interconnected. Evidence is a critical
factor to consider when courts determine whether an expert’s opinion is reasonably certain. Best evi-
dence is often used by courts to describe the type, nature, and quality of information that should be in-
troduced by the parties to establish the key elements of their case, including liability, damages, and cau-
sation.

There are no universally-accepted criteria or requirements about what constitutes best evidence. Like
reasonable certainty, best evidence is predicated entirely on the specific facts and circumstances of each
case. Nonetheless, it is helpful to explore how different courts have evaluated this issue, that is, the types
of documents, methodologies, or information that judges have found constitute best evidence, to gain an
understanding of where courts have concluded certain experts and plaintiffs have fallen short meeting
the court’s standard under the facts of a particular case.

To be clear, the concept of best evidence as it relates to economic damages and as explained in this
chapter should not be confused with the Best Evidence Rule, which refers to Rule 1002 of the Federal
Rules of Evidence:

“An original writing, recording, or photograph is required in order to prove its content unless
these rules or a federal statute provides otherwise.”

The Best Evidence Rule has been further described as follows:

“The best evidence rule applies when a party wants to admit as evidence the contents of a docu-
ment at trial, but that the original document is not available. In this case, the party must provide
an acceptable excuse for its absence. If the document itself is not available, and the court finds
the excuse provided acceptable, then the party is allowed to use secondary evidence to prove the
contents of the document and have it as admissible evidence. The best evidence rule only applies
when a party seeks to prove the contents of the document sought to be admitted as evidence.” fn 1

In contrast to the federal Best Evidence Rule, best evidence as it concerns reasonable certainty and eco-
nomic damages is discussed in Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511 (10th Cir. 1987).
In this case, the concept of best evidence with respect to the calculation of damages was introduced:

A reasonable basis for computation, and the best evidence which is obtainable under the circum-
stances of the case and which will enable the jury to arrive at an approximate estimate of the
loss, is sufficient.

fn 1 See www.law.cornell.edu/wex/best_evidence_rule.

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