Part 2: Which Side Are You On? How the Facts of the Case Shape the Engagement
When our team at Cogence Group is retained on an economic damages case, two of the first questions we ask are these: which side of the case are you on, and does your client control the financial records?
These may sound like simple housekeeping questions. They are not. The answers to both these questions shape nearly every decision we make about how to approach the engagement, what to ask for, and how to build our analysis.
Plaintiff or Defense: Which Side Are You On?
We are party-agnostic when it comes to working with plaintiff versus defendant, but whether we are working with plaintiff's counsel or defendant’s counsel fundamentally changes how we think about the damages analysis from the outset.
On the plaintiff's side, we are typically building the case for damages. We are developing the analysis that quantifies the harm and presenting it in a way that is credible, well supported, and defensible under scrutiny. The burden of proof sits with the plaintiff, which means our analysis has to be thorough enough to withstand challenge.
On the defense side, our role often shifts. We may be scrutinizing the plaintiff's damages model, identifying weaknesses in their methodology, testing their assumptions, and presenting an alternative analysis that tells a different story. That is a different kind of work that requires a different kind of thinking.
Understanding which role we are playing from day one allows us to approach the engagement with the right focus. This includes understanding the role we play in gathering financial records, which we will discuss next.
Who Controls the Records
Layered on top of the plaintiff versus defense question is the question of who actually holds the financial records that matter most to the analysis.
When our client controls the records, we have a significant advantage. We can sit down with the client, walk through the financials in real time, ask follow-up questions, and get clarity on issues as they arise. We can see the full picture of the business, not just what was produced in response to a document discovery or interrogatory request. As the damages analysis takes shape, we can identify gaps early, test assumptions against the actual books, and make sure the story the numbers tell is complete and accurate before it ever ends up in an expert report.
When the records sit with the opposing party, the process is considerably more challenging because we are dependent on what the other side produces. From experience, what the other side produces is not always complete, well-organized, or in a format that is easy to work with. We have to anticipate what financial records the other side likely has without being able to see their books directly. We have to try to ask for the right things without knowing exactly what exists. And if the other side is being obstructive or slow to produce, the timeline for building the analysis can get compressed quickly. That obstruction is not always accidental, and an experienced damages expert knows how to identify gaps in production and help counsel push back through the appropriate channels.
When the Records Are Somewhere Else Entirely
It is also worth noting that the most important financial records are not always with either party. Sometimes they sit with a bank, an outside accountant, a key vendor, a franchisor, or another third party entirely. In those situations, getting access requires subpoenas or other legal tools, which take time and coordination. It is yet another reason why the earlier a damages expert is brought into the conversation, the better. In any case, we can help identify where the relevant records are likely to live and what steps need to be taken to obtain them before the window closes.
Following the Facts, Not the Narrative
One last thing worth addressing here: our clients can trust that regardless of which side we are on or who controls the records, our job is to obtain and follow the facts.
Clients and counsel understandably want a favorable outcome, and it is human nature for that desire to influence how the story gets told in order to control the outcome. We are aware of that dynamic, and we work hard to stay objective. That means understanding the perspective of both the complaint and the answer, and any counterclaims. It means asking hard questions of our own client's records and analysis, not just the other side's. And it means making sure the analysis reflects what the numbers actually show, not what anyone hopes they show.
An expert who bends to the pressure of a desired outcome is not just doing bad work. They are creating a vulnerability that opposing counsel will find and exploit. Objectivity is not just an ethical obligation. It is also a strategic one.
Why the Combination Matters
These two dynamics, which side you are on and who controls the records, do not always line up the way you might expect. A plaintiff does not always control the relevant records. A defendant sometimes does. In some cases, neither party has clean access to everything the analysis requires. The combination is what really determines the information gathering strategy.
For these reasons, the conversation needs to happen at the very start of the engagement. The earlier we understand the landscape, the better positioned we are to help counsel get ahead of the discovery process rather than scrambling to catch up.
Up next: Whether your client controls the records or not, the next step is making sure the right ones get requested. In Part 3, we will cover how a damages expert helps counsel craft discovery requests that are targeted, financially precise, and get you what you need.