Part 11: Beyond the Report ‑ How a Damages Expert Helps Counsel Prepare for Trial
By the time a damages case reaches the trial preparation stage, the analysis is largely complete. The model has been built, the reports have been served, and both sides have put their financial narratives on the table. Now the focus shifts to something different: getting ready to present the case to the trier of fact.
For a good damages expert, trial preparation is not passive. It is one of the most collaborative and intensive parts of the entire engagement.
Taking the Burden Off Counsel
Trial preparation (and the trial itself) is an enormously demanding period for litigation counsel. There are exhibits to identify, fact witnesses to prepare, pretrial motions and briefs to finalize, and a hundred other details to manage simultaneously. The last thing a busy trial team needs is to also be responsible for drafting every single question the damages expert should be asked on the stand.
One of the most valuable things Cogence Group can do in the weeks leading up to trial is take that burden off counsel. That means drafting proposed direct examination questions, drafting proposed cross-examination questions for the opposing expert, and preparing demonstratives that will be used during testimony. When a damages expert takes ownership of that work, counsel can focus on everything else. In our experience, attorneys consistently find this collaboration extremely valuable in cases.
Drafting Direct and Cross Examination Questions
Direct examination is when the damages expert tells their story to the trier of fact. A damages expert is uniquely positioned to help draft those questions because they know the analysis better than anyone and view the case from a financial lens. They know which concepts need the most explanation, where the logical flow of the testimony should go, and how to sequence the questions so that the conclusion lands clearly for a judge or jury without a financial background.
On the other side, helping counsel draft cross-examination questions for the opposing expert is equally important. The damages expert has spent significant time evaluating the opposing analysis and understands its vulnerabilities better than anyone on the legal team. That knowledge needs to be translated into questions that are focused, targeted, and designed to surface the most significant weaknesses in the opposing expert's work without losing the judge or jury in the process.
Demonstratives play an important role throughout. Charts, graphs, and summary exhibits that illustrate the key numbers and concepts can make complex financial analysis far more accessible than testimony alone. We will cover demonstratives in more detail in Part 12.
Preparation and Alignment
Trial preparation is also about alignment. The damages expert and counsel need to be on the same page about what the expert will say, how they will say it, and how the testimony fits into the broader narrative of the case. That means working through the analysis together, anticipating tough questions from opposing counsel, and making sure there are no surprises on either side when the expert takes the stand.
It also means understanding what the other witnesses will say. As we touched on in Part 8, many of the assumptions in a damages model depend on support from the client, fact witnesses, industry experts, or other experts testifying in the case. What will the fact witnesses say that corroborates the key assumptions in the analysis? What will the industry expert establish that the damages expert is relying on? Making sure all of those pieces fit together before anyone takes the stand is a critical part of preparation.
A damages expert who has been involved throughout the case, from the early stages of discovery all the way through report preparation and opposition analysis, is in the strongest possible position to prepare effectively for trial. The preparation is not starting from scratch. It is building on everything that came before.
A Note on Oregon State Court
It is worth noting that trial preparation looks very different in Oregon state court. As we discussed in Part 9, there are no expert reports and no pretrial disclosure of expert opinions in Oregon state court. That changes the preparation dynamic significantly. Without a written report to anchor the testimony, the preparation process relies even more heavily on close collaboration between the damages expert and counsel in the days and weeks leading up to trial. The absence of pretrial disclosure also means that demonstratives and examination questions may need to be prepared with less advance notice and under tighter time constraints than in federal court. Our experience at Cogence Group allows us to move quickly when the timeline demands it. As a boutique firm, we operate with a lean and dedicated team that is able to jump in immediately, work closely with counsel under tight deadlines, and turn around a defensible, well-documented analysis without sacrificing rigor. That combination of responsiveness and analytical depth is something we take pride in and something our clients have come to rely on.
Up next: All of this preparation leads to the moment that matters most. In Part 12, we will cover what effective expert testimony looks like from the stand, how a damages expert communicates complex analysis to a judge or jury, and how counsel and the expert work together to make the most of their time in the courtroom.