The Use of Surveys in Lost Profits Analyses

Lost Profits Damages: Principles, Methods, and Applications, second edition, 2022

Survey experts from Analysis Group have contributed a new chapter for the second edition of Lost Profits Damages: Principles, Methods, and Applications, the comprehensive book co-edited by Managing Principal Jeffrey H. Kinrich and Everett P. Harry III, former senior partner at Harry-Torchiana LLP.

In their chapter titled “The Use of Surveys in Lost Profits Analyses,” Vice President Anne Cai, Principal Rene Befurt, and Managing Principal Rebecca A. Kirk Fair describe how well-designed and carefully interpreted surveys can be useful tools for providing a range of empirical evidence in damages analyses.

After addressing a series of fundamental topics about the proper design and use of surveys in litigation, the authors describe three types of survey methodologies frequently used in lost profits cases:

  • Direct surveys of customer usage patterns (e.g., to assess feature or product penetration)
  • Survey experiments to assess but-for outcomes (e.g., whether the alleged wrongful conduct had a direct and measurable impact on an observed outcome)
  • Conjoint analysis to assess the relationship between consumer choice and but-for competitive conditions (e.g., understanding whether the presence of an at-issue attribute affects consumers’ purchase decisions)

The chapter documents best practices to be followed in designing, conducting, and interpreting consumer surveys to ensure that they answer the relevant question and that they will meet admissibility requirements. The authors also discuss how surveys can be utilized in different types of cases, including consumer confusion, patent infringement, antitrust and competition, inadequate disclosure, and false advertising litigation.

For more information on how to get a copy of Lost Profits Damages: Principles, Methods, and Applications (second edition), please contact Mr. Kinrich or visit the Valuation Products and Services website.

Read about the second edition


Befurt R, Cai A, Kirk Fair R