Originally from Journal of Damages in International Arbitration

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“The only goal of trial is to get money for your client.” — David Ball on Damages xxi (NITA 2005)

I. INTRODUCTION

David A. Ball, Ph.D, ends the preface of the second edition of his treatise with the above maxim. While his book is geared toward U.S. plaintiffs’ lawyers in personal injury and wrongful death cases, the maxim is undoubtedly true in international arbitrations as well. Barring the relatively rare instance where a claimant seeks non-pecuniary remedies, the claimant’s primary goal is to obtain the highest monetary award possible. Conversely of course, the respondent’s goal, if unable to prevail on liability, is to minimize the damages award. Yet damages often get short shrift in the preparation of an international arbitration. Parties often spend months developing complicated factual details and arcane legal theories, only to wait until relatively late in the game to develop their damages story. This is a mistake. Damages should be foremost in the minds of advocates at every stage of an international arbitration. Whenever possible, prior to even filing a claim, claimant’s counsel should be well advanced in the preparation of his damages evidence, through the early identification of appropriate documents and witnesses to the quick retention of a damages expert or experts. This in turn will inform the approach at each subsequent step in the process, from the selection of arbitrators to closing statement.

This chapter will present damages from the standpoint of the claimant’s advocate. This is logical. Claimants of course have the burden of proof on all issues. Respondents, on the other hand, in effect have two chances to defeat a damages claim — on liability and on the merits of the amount claimed. It is for claimants to develop powerful, compelling evidence on damages.