Page 20 - Calculating Lost Profits

gether to compute total damages. In addition, a practitioner may consult with counsel to understand the
current status of the claims made by the plaintiffs. It may be that legal motions have been ruled upon by
the court and eliminated certain claims, or certain parties have been dismissed by the time a practitioner
performs a damages analysis. Further, a practitioner may be asked to testify concerning how damages
are aligned with each of the legal claims. Such a question is typically a legal issue. The practitioner,
however, may consult with counsel prior to providing testimony regarding a reasonable response to such
a question. fn 16

Finally, a practitioner may want to consult with counsel regarding the anticipated jury instructions appli-
cable to the claim or claims. Jury instructions frequently provide useful insight regarding the applicable
recovery. These insights can often be used to assist in determining how to present damages and if the
practitioner needs to allocate damages between wrongful acts or claims. Although final jury instructions
are not typically filed with the court until the eve of trial or during trial, model jury instructions may be
useful in validating the methodology used. fn 17

fn 16 Experts should be aware that conferences with counsel during a deposition or while testifying at trial (including during breaks)
may be prohibited and such discussions may be discoverable. For example, in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa.
1993), the trial court held that "conferences between witness and lawyer are prohibited both during the deposition and during recess-
es," 150 F.R.D. at 529. Further, the Court held that anything a lawyer tells a witness during such a conference is not protected and may
be inquired into by opposing counsel to determine whether any coaching has occurred. Id. However, some courts flatly rejected Hall
and held that a witness has the right to confer with counsel during normal deposition breaks and recesses. See In re Stratosphere Corp.
Sec. Litig., 182 F.R.D. 614, 620 (D. Nev. 1998) (adhering to Hall could violate right to counsel); Haskell Co. v. Georgia Pacific
Corp., 684 So.2d 297, 298 (Fla. Ct. App. 1996) ("There is no recognized exception to the privilege for a communication between an
attorney and client which occurs during a break in deposition. If a deponent changes his testimony after consulting with his attorney,
the fact of the consultation may be brought out, but the substance of the communication generally is protected.").

fn 17 See, for example, www.floridasupremecourt.org/contract-business-jury-instructions/instructions.shtml.

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