The plaintiff without the breach. The market without the conduct. The company without the misstatement. Damages analysis is the discipline of building that world from evidence, and it is where most claims are won or quietly lost.
Start a conversation with Cournot, the Institute’s damages concierge, already scoped to the but-for world. Select a subject area to prompt it, or describe the dispute directly.
Ask what a damages case is about and you will hear about the conduct, the industry, the documents. Underneath all of it sits one construction: the but-for world, the state of affairs that would have existed had the conduct not occurred. The measure of loss is the distance between that world and this one. Everything turns on how the counterfactual is built, because it cannot be observed, only assembled from evidence about worlds that did exist: the plaintiff's own history, the performance of comparable businesses, the plans and budgets written before anyone was suing anyone. A counterfactual assembled with discipline reads as the most probable path of events. One assembled backwards from a desired number reads as advocacy, and opposing experts and judges have seen enough of both to tell the difference quickly. This area covers how the but-for world gets constructed, which comparison methods carry weight, and the question that precedes both: how much of what happened was the conduct, and how much was everything else.
Three problems every counterfactual has to solve.
The but-for world is assembled from evidence, not asserted. What goes into a credible one, and what sinks it.
investigateThe two comparison methods, the regression machinery behind the modern versions, and where each comparison breaks.
investigateThe market moved, competitors moved, the plaintiff stumbled. How much of the loss was the conduct? The question that decides whether any number is admissible.
investigateHow the Institute approaches a counterfactual, before anyone models anything.
It is the load-bearing part of the damages model, and treating it as a preamble is how claims fail. The arithmetic that follows, subtracting actual results from but-for results and discounting to present value, is rarely where the fight happens. The fight is over whether the but-for trajectory itself is credible: whether the growth assumed was achievable, whether the plaintiff had the capacity and the capital to follow that path, whether the market would have allowed it. An expert report that spends thirty pages on computation and three on the counterfactual has the proportions exactly backwards, and experienced opposing counsel read the three pages first.
Not uncertainty itself, because every counterfactual is uncertain. What draws the label is a projection unmoored from evidence: growth rates no comparable business achieved, market share the plaintiff never held and had no concrete path to, a trajectory contradicted by the plaintiff's own pre-dispute planning documents. The most protective evidence is contemporaneous: budgets, board projections and lender presentations written before the dispute, because they show what the business itself believed when it had no reason to shade the answer. A but-for world consistent with those documents is hard to call speculative. One that exceeds them needs an explanation for the difference.
With difficulty, and honestly acknowledging that is the beginning of doing it well. A venture with no operating history cannot use its own past, so the counterfactual has to be built sideways: from the performance of comparable young firms, from industry survival and growth data, from the venture's own funded plan and any early results it did achieve. Some jurisdictions historically treated new businesses as unable to prove lost profits at all, and the modern trend is more permissive, but that is a question of law for counsel. The economic reality is unchanged either way: the younger the business, the more the counterfactual depends on comparisons, and the more the choice of comparison becomes the case.
It is mostly made for you by the records, which is why it should be confronted early. A stable business with years of monthly financials can support before-and-after. A young or transformed business cannot, and needs a yardstick or a construction from plans and market evidence. Discovering at expert disclosure that the method you assumed is unavailable on the evidence, or that the data supporting the better method was never requested in discovery, is a common and avoidable failure. The Institute's consistent advice is to test which counterfactual the records can support before retaining anyone, because that answer determines which expertise the matter needs.
Describe the dispute and what records exist. The Institute will help you see which construction the evidence can support.