A credible but-for world is the most probable path of events, built from what the business knew and did before anyone was in a dispute.
Start a conversation with Cournot, the Institute’s damages concierge, already scoped to constructing the counterfactual. Pick a starting point, or describe the dispute directly.
The direct construction of a but-for world, projecting what would have happened rather than comparing to a before period or a benchmark, is the most flexible method in damages analysis and the most exposed. Every input is an assumption someone chose, and every assumption is a separate cross-examination. The discipline that separates a construction from a wish is provenance: where each input came from, and when. Contemporaneous evidence carries the most weight, the budgets, board projections, sales pipelines and lender presentations prepared when the business had no incentive to shade them. Market evidence comes next: the size of the addressable market, the shares comparable entrants achieved, what distribution and capacity the plaintiff actually had. The constraint side is where credibility is earned. A projection that lets the plaintiff grow without the working capital, staff, plant or supply to support that growth will be taken apart on exactly that point, and the expert who imposes those constraints first is the one the fact-finder ends up trusting.
Each element is a place the opposing expert will visit. Build accordingly.
Budgets, forecasts and board documents from before the dispute. The strongest inputs, because nobody wrote them for litigation.
The addressable market and the share the plaintiff could plausibly have taken, benchmarked against what comparable firms achieved.
Whether the plaintiff had the plant, people, capital and supply to make the projected sales. Unconstrained projections are the classic overreach.
The rate the but-for business grows, and its basis. The single most attacked input in most constructions.
When the but-for path diverges from the actual one, and when the two converge again, each anchored to facts.
Whether the projection uses only what was knowable at the time of the conduct, or what is known now. The framing changes the number and is often contested.
How the Institute approaches a direct construction.
Nearly everything downstream inherits its credibility from here.
A but-for projection that exceeds the growth the business itself budgeted before the dispute has to explain the difference, and "we were being conservative" rarely carries it. Find the pre-dispute planning documents before the expert writes, not after the rebuttal arrives.
Documents written before the dispute, by the business itself, for purposes other than litigation. A budget presented to a board, a forecast given to a lender, a pipeline reviewed at a sales meeting: these show what the business believed its trajectory was when it had every incentive to be accurate rather than optimistic. They are hard to dismiss as advocacy because nobody knew there would be a case. Their absence is also informative, and uncomfortable: a but-for world that materially outruns everything the business ever put on paper about itself needs an affirmative explanation, and the explanation becomes the deposition.
Ex ante builds the counterfactual from what was knowable at the time of the conduct, and measures the loss as of then. Ex post uses everything known through trial, including how the market actually moved afterwards. The two can produce very different numbers: an industry that collapsed after the conduct shrinks an ex post claim and leaves an ex ante one untouched, and the reverse. Which framing applies involves questions of law as well as economics, and jurisdictions and claim types differ, so it is a decision to make with counsel deliberately. What an expert must not do is mix frames, using hindsight where it helps and ignoring it where it hurts, because that pattern is easy to expose and fatal to credibility.
Operationally, line by line, which is precisely why unconstrained projections are attacked so effectively. If the but-for world has the plaintiff doubling output, someone has to ask where the machines, the shifts, the skilled staff, the raw materials and the working capital come from, and what they would have cost, because those costs also belong in the model. The same discipline applies to demand: winning sales the market did not have room for, or that a competitor was contractually locked into, is not a path that survives scrutiny. An expert who imposes these constraints visibly, and shows the projection absorbing them, converts the biggest vulnerability of the method into a demonstration of rigor.
Yes, and the strongest work usually does. A direct construction corroborated by a yardstick lands harder than either alone: the projection shows the path, and the comparable firms show the path was achievable in the real world. Before-and-after evidence can anchor the starting point even where the damages period itself needs a construction. Convergence between independent methods is persuasive precisely because the methods fail differently, so agreement between them is unlikely to be an artifact. Divergence is a warning worth having early: if the construction and the benchmark disagree materially, the other side will find out why, and it is better to know the answer first.
Describe the business and the conduct. The Institute will help you see what a credible construction would need.