FORENSIC ACCOUNTING AND LITIGATION CONSULTING SERVICES in Visual Studio .NET

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must also be familiar with tax implications of various asset transfers or split-ups so that neither spouse later nds unexpected tax consequences The accountant should be aware of the proper handling of pension plan assets, individual retirement accounts, 401(k) plans, and the like, so that each party receives a fair share of assets and so that income tax or excise taxes are not triggered unnecessarily In community property states, the existence of separate property and the impact of prenuptial agreements may also require analysis signi cant tracing of funds may become necessary if a total segregation of separate property assets has not been maintained The marital community may have rights to a contribution for increased value of separate property that arises from services provided by the community after marriage Lastly, the community may have some interest in separate property if joint tax returns have been led and no separate tax cost was allocated to each category of assets Accountants often are asked to determine the value of the assets owned by the litigants as well as the income sources from which spousal and child support can be calculated The valuation of assets often includes business valuation and, in the case of professionals, the value of their shareholdings, partnership interest, or professional licenses Issues such as professional goodwill or celebrity goodwill are important and contested often in marital dissolution litigation (ii) Partnership Dissolution Partnerships sometimes break up in a manner similar to a divorce The accountant s work is also similar, focusing on tracing, valuation, and fair apportionment of assets and liabilities, usually pursuant to the terms of the partnership agreement, if one exists (iii) Personal Injury Personal injury cases stem from automobile accidents, slip-and-falls, and the like Typically, damage components include medical expenses, pain and suffering, lost earnings, and loss of consortium to the injured party s spouse The accountant is usually involved in the calculation of lost earnings and in calculations regarding the interest components of the judgment For identi cation of the issues involved, see Subsection 464(b)(ix)
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465 CALCULATING DAMAGES
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(a) GENERAL CONCEPTS In proving liability, the plaintiff must demonstrate that the defendant s actions were in violation of the plaintiff s legal rights In moving from liability to causation, the plaintiff must demonstrate that the illegal actions caused injury to the defendant Only then can damages be calculated In discussing damages, we rely on the concept of the but-for world The but-for world is the economic and physical environment that would have existed but for the actions of the defendant In other words, it is the undamaged world, in contrast to the actual, damaged world that did occur and in which the defendant performed the alleged illegal acts (b) MEASURING DAMAGES Depending on the case, there are many different standards by which damages are measured, including the following four:
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Lost pro ts (past pro ts, prospective pro ts, or both, including increased costs) Lost asset value (the appraised value of identi ed assets, including goodwill, or other intan-
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gibles)
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Lost personal earnings (wages, salary, etc) Lost royalties or licensing fees (amounts due for use of the plaintiff s assets or rights) or
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share of pro ts pursuant to participation agreements In most cases, these approaches are all attempts to compute the difference between the but-for world and the actual world That is, they attempt to measure the difference between what should have happened and what actually did happen Lost pro ts are the most common standard for business cases Valuations are used in both business disputes and marital dissolution proceedings Personal earnings is the damages standard
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465 CALCULATING DAMAGES
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46 17
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for the economic component of personal injury suits (Other components are medical costs and pain and suffering) Reasonable royalty is used in intellectual property disputes, especially patent cases (c) MITIGATION A plaintiff has the obligation to mitigate damages This means that the plaintiff must take reasonable steps to minimize the damages suffered More speci cally, the courts (and damages experts) will compute damages as if the plaintiff mitigated, whether the mitigation really occurred or not In many cases, reasonable mitigation will have occurred, and the expert may look at the difference between what should have occurred and what did occur as the measure of damages After all, the plaintiff s recovery through litigation is uncertain, and plaintiff has every incentive to reduce damages to itself However, if reasonable mitigation did not occur, the accountant should make the necessary adjustments (d) INTEREST ON DAMAGE AWARDS Some or all of most damage awards are to compensate for past losses In order to be made whole in economic terms, it might be supposed that the plaintiff should earn interest on past losses from the date of loss to the date of payment However, the law does not always allow interest, and when it does, the interest rate is not always the rate applicable to the economic circumstances In general, the treatment of interest is governed by the applicable law The courts distinguish between prejudgment interest (accrued between the date of loss and the date of trial or nal judgment) and postjudgment interest (accrued from the date of judgment to the date of payment, which can be years if the judgment is appealed) In some jurisdictions, the rate of interest is set by law Depending on the case, some jurisdictions do not allow prejudgment interest; most allow postjudgment interest Some interest awards are within the province of the court Some judges may allow calculations of interest to go to the jury as part of the damage claim; others may reserve the right to separately compute interest (either at the statutory rate or at a rate depending on proof) after the jury awards damages If the court allows economic testimony as to the amount of interest, what is the proper approach The accountant should determine interest by recreating what would have happened to the plaintiff had the money been received at the times the damage claim asserts The issues to be analyzed include the following:
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