Strategy, pretrial preparation, and examination checklist.

By Gerald D. Martin

Exposing Deceptive Defense Doctors

Excerpted from Exposing Deceptive Defense Doctors

Each attorney will have his own technique for questioning an expert at deposition. Some will spend the first hour or more just going through the expert’s personal history, but all this accomplishes is to increase the cost of the deposition due to the time spent. Besides, the attorney may just be cementing the expert’s qualifications and precluding any effective challenge in court.

Most attorneys get right to the point, elicit the relevant information, and quit. An experienced attorney who understands the economic issues will finish in about an hour, sometimes less. Others are just groping in the dark or trying to use the economist as a personal teacher.

An effective deposition will discover the expert’s basis for the evaluation, his methodology, his assumptions, and permit an assessment of just how effective the expert will be before a jury. Further, it will force the expert to take hard positions from which retreat will be difficult at trial. When any statistical data or studies have been relied on, a copy of the pages used should be requested along with a complete citation of the source document.

Questions should always be asked regarding information received which is not in the file, such as the content of phone cans. When calculations have been made, the expert should be asked to provide the entire calculation, not just the answer. In recent years, an interesting and yet unresolved problem has arisen: what to do when the calculations have been done on a computer. Some experts save data on floppy computer disks in order to expedite revisions before trial. Many cases are usually on the same disk, and if a hard disk is being used, the current case will be buried among hundreds of programs and files. Even if you are able to obtain the floppy disk, there is no assurance that it can be read by your expert, or that it has not been copy protected. Perhaps the solution is to request, in your demand for production, a hard (paper) copy of anything in the expert’s computer that is relevant to your case. But don’t expect to receive the expert’s program that makes the calculations. He will have hundreds of hours of development time tied up in a unique program that will not be for sale at a reasonable price. If you do manage to get it, it will take another programming expert a long time to decipher it and your client is not likely to be willing to pay thousands of dollars for either the purchase or decoding of the program.

Finally, it is important to decide whether you want to challenge the expert at deposition, or just discover what he will do at trial. Some attorneys turn a deposition into an inquisition, but this can backfire. From personal experience in hundreds of depositions, this writer much prefers to be attacked and challenged in deposition rather than to be questioned in a friendly manner with little or no follow-up or debate on any point. When the deposing attorney gives no indication of what he agrees or disagrees with, preparation for trial is much more difficult. It would be hard to improve on the remarks of Carroll Dubuc, a Washington, D.C., attorney writing for the Defense Research Institute in 1984 when he said, “…it is as important to know how to corner an economist as to know when to do it. If you can pin the economist to his testimony in deposition and gather ammunition for the trial, you will have the advantage. If you destroy him at deposition, you will face a wiser and more formidable opponent at trial.”

§1460  Preparing Your Expert for Trial

Use the Trial preparation Checklist in Chapter 1 of this guide as your basis, and add anything that you know from experience will help. Remember that you should always try to avoid surprises at trial, and the best way to do this is to work with your expert in advance so that he will know what you will ask and you will know his answers.

§1461      Qualifying Your Expert

Always go through your expert’s qualifications. Quite often, opposing counsel will offer to stipulate to the expert’s qualifications. There may be several reasons for this stipulation. One, his expert may be less qualified. Two, he may not be using an expert. Three, he may not want to let the jury know just how well qualified your expert is. So, even if a stipulation is offered, go right ahead with the qualifications and let the jury know that he has the training and experience to offer the opinions that will follow.

§1462      General v. Specific Question on Direct

Your approach to asking questions on direct depends both on your experience working with economists and the economist’s experience in the courtroom. If you have seldom, if ever, used an economist, and he is experienced, it may be better to just ask broad, general questions and let the expert carry the ball. Listen carefully, and ask clarifying questions if he says something you do not understand because it is possible some jurors also do not understand. The expert can give you a short list of topics to guide your questions, and you can finish by asking if he has now covered all of the estimates he has made and described all of his sources.

If you are the more experienced, you may wish to ask more questions, each more detailed than in the general approach. In this way, you can guide the examination at the pace and depth you think is best to get the information across to the jurors.

Consider using large charts or tables to illustrate points covered in the direct examination, or have the expert go to a posterboard and write out certain information. If you plan to do this, tell your expert in advance so he will be prepared. It can be very embarrassing to ask an expert to draw a chart without giving him the opportunity to prepare.

§1463      Protecting Your Expert’s Testimony

On cross-examination, experts have become accustomed to a series of questions implying that their entire testimony is based on a long list of assumptions. This is true. The assumptions are based on logic, common sense, and the information available. Often this is hearsay, but, unlike the lay witness, experts are permitted to use hearsay. Make sure the jury knows this if it becomes an issue. You can, however, minimize the assumptions with the proper use of witnesses who testify before the economist. For example, when family members testify, go into the subject of the services performed around the home and for the family. Have your doctors, nurses, and rehabilitation experts provide the data the economist is relying on. If possible, introduce birth certificates, death certificates, and employment records. If a former employer testifies, ask him about the policy for granting raises and promotions, and the stability and security of the job held by the plaintiff. In short, eliminate as many assumptions as possible by offering factual information.

§1464      Rehabilitate Your Expert on Redirect

Although you can tell your expert what he will be asked on direct, he is on his own during cross-examination. At times, you can protect him with objections, but not always. If you know your opponent has cast some doubt on your expert’s testimony, it is up to you to ask the questions that will allow the expert to clarify everything. If possible, try to get a recess right after cross-examination is complete. You may find that the expert knows exactly what you should ask him to counter what has occurred. If you can’t get a recess, then go back to the topics where your expert was not allowed to give an explanation, even though he tried, and ask if he would now care to elaborate on what may have been restricted to a yes or no answer on cross examination. With carefully worded questions, you can give your expert some rather general openings to offer a more complete answer to any hypothetical questions asked on cross-examination.

§1465      Difficult Issues on Cross-Examination

It is not possible to predict all the difficult issues your economist may face on cross-examination, but there are a few that seem to come up often. Some have been discussed. but a summary is in order:

  • Assumptions: Many attorneys will ask about an the assumptions made in reaching an opinion of losses. He will ask whether the economist has verified everything possible, including such obvious things as date of birth of the plaintiff. It is extremely rare that an economist will examine the birth certificate of the plaintiff, and it is not necessary that he do so. Nevertheless, the opposing attorney will build up an impressive list of assumptions made and ask whether the appraisal is accurate if any of the assumptions are incorrect. Yom economist should never argue over assumptions. Of course, he made many, and should freely tell the jury. The purpose of this type of examination is to make an assumption appear to be nothing more than a guess, thereby weakening the effect of the calculations made. It is not a series of questions that should lead to an argument, and certainly your economist must avoid going on the defensive as it makes him appear to be an advocate. One of the spontaneous responses I have heard an economist give, after being grilled endlessly on assumptions, was to look at the jury and tell them that not once in his life had he seen a baby squirrel, but he assumed they must exist.

  • Wrong field of expertise: Economists should be alert for questions that could be better answered by an expert in another specialty. For example, the economist should never give opinions regarding shortened life expectancy, vocational rehabilitation possibilities, the need for any medical procedure, an opinion as to who was at fault, or a legal opinion regarding collateral sources. If your case has been prepared properly, an of these things will have been testified to by prior experts and the economist should state that he is relying on their professional opinions, not his own.

  • 100% certain: Increasingly, attorneys are using guides written for cross examination, and one recent guide recommends asking, at the end of the deposition or trial, whether the economist is 100% certain that his estimate of the loss is correct. Of course, he is not and should never say that he is. He should tell the jury that, no, he is not 100% certain about the future, but based on prior testimony and information provided to him, the estimate is the most likely or most probable estimate at that time testifying under oath to tell the truth, and that he is offering them the very best estimate he believes can be make.

  • Unlimited resources: Another closing question being asked on cross-exam goes like this: “Dr., if you were given unlimited resources and funds, is there anything you would do in researching your opinion of the loss that you have not done in this case?” This should be easy, but some economists have tripped up over it. In several thousand cases, I have never had a retaining attorney tell me up front the maximum number of hours I could put in on the job, or the maximum amount of time that I could bill. Consequently, I have always operated under the belief that I have unlimited resources and funds in all cases. Just have you economist tell the jury he had no restrictions placed on him either resources or funds.

  • First year interest: In many evaluations, the total loss will, when invested, generate more in interest earnings in the first year than will be needed to pay the loss in that year. The typical questions here is to have the economist tell the jury what is lost in the first year and how much will be earned in interest in the first year. Sometimes, the attorney will continue by asking if the same amount is earned each year and that the amount is taken by the plaintiff, isn’t it true that he will still have the original award at the end of his worklife. Certainly, that is true, and the questions usually stop there. On redirect, just ask your economist what is wrong with that assumption, and he will easily explain that, because earnings increase each year, but interest earnings, don’t, eventually there will not be enough earned in interest to pay the loss in future years, and at that time the award itself, will begin to be depleted, reaching a zero value at the end of worklife. (This is also known as the unanswered question. Defense  attorney will not ask this to the economist, but will wait until he ahs gone and appear to think of it for the first time in closing argument. He may tell the jury, “isn’t it too bad the economist is not here to answer that question.” Now this becomes your problem because the economist cannot be recalled. either head it off by covering in on direct, or remind the jury that the economist was present and ready to answer any questions posed on cross-examination).

  • The average person: Many times, the economist will have to rely on studies and government statistics to calculate a loss. For instance, it is common to rely on life expectancy and worklife expectancy tables, average household service value studies, personal consumption studies, and other items that pertain to large groups rather than the individual plaintiff. This may be the focus of cross-exam questions, and in most cases, the best answer your economist can give is to say he assumed the plaintiff was neither better nor worse than the average.

§1470  Some Final Comments

It is not practical to write a guide that covers every conceivable economic damage situation, and  this guide is no exception. However, there is a thread of consistency that runs through every evaluation, and that thread has been offered here. By now you know that not all economist agree on the methods that should be used in determining damages, but progress is being made daily. The first two professional associations devoted exclusively to forensic economist have just been formed in the last two years and these promise to open avenues for an exchange of ideas that may ultimately lead to a two consensus opinion. In the meantime, new data new research, and new ideas will continue to emerge, and changes will inevitably occur in state and federal laws governing the work of economist. Periodic supplements to this guide will update you on these events and will elaborate on topics that were, of necessity, covered only briefly here.

Items which will be considered for inclusion in future supplements include the creation and evaluation of structured settlements, updated data on wages and growth rates, worklife expectancy, new developments in measuring personal consumption, updated household service cost studies, a bibliography of the more important writings in forensic economics, sample testimony from actual cases, and more on wrongful termination cases, questionnaires and checklists for gathering data needed by the economist.

The role of the economist is still evolving, but one thing is becoming clear. The successful, effective, and sought after economist is the one who is playing the game fairly. He is not an advocate for either side and he does not use methods that are obviously biased toward an estimate that is too large or too small. He knows that his role is not to penalize the defendant, but to make whole the plaintiff. This is the expert you want on your side in court.

§1480  How to Depose and Cross-Examine the Economist

If you are defending a case in the six-figure range, you can expect to encounter a plaintiff’s economist. You then have three options.

  • Forego retaining a defense economist and rely on your ability to cross-examine plaintiff’s expert.

  • Retain an economist as a consultant only to assist you as you critique the work of plaintiff’s economist and prepare deposition and cross-examination questions.

  • Designate an economist to make an independent evaluation of the losses and to testify in court.

Should you elect the first option, you must understand enough of the theory and methods to spot weaknesses as well as bias in plaintiff’s claim. One way for you to be prepared is to review the relevant literature in the field of forensic economics, a formidable task.

Should you decide to retain an economic consultant, make the decision early. The advantages of using a consultant are several. You do not have to disclose the fact that you are using an economist, and thus there will be no courtroom battle of experts. Without a defense expert, there will be no “floor” on the damages. Your economist cannot be excluded from the courtroom or deposition when plaintiff’s economist testifies. Finally, your consultant’s report and correspondence cannot be discovered, and he or she will not be deposed.

An early decision helps you take full advantage of the consultant’s expertise. Usually, plaintiff must provide a report by his economist before the deposition. From this, your consultant can make a thorough critique and help you write or prepare your deposition questions. He can tell you what topics to pursue, what assumptions are weak, and provide you with source documents to counter claims made by plaintiff’s economist. He can also tell you when the economist is making a fair appraisal of damages.

Unfortunately, the defense economic consultant is too often called in late. If he is not involved in the process of preparing deposition topics, he may not get all the information he needs, especially if (as is likely) there is no further discovery before trial. If your economist cannot learn what he needs until the trial is in progress and the plaintiff’s economist is testifying, his ability to assist is severely handicapped. He will have precious little time to provide you with anything other than on the spot suggestions, and no time at all to obtain studies and documents that you could have used to discredit the expert’s work.

The third option, designating your own economist expert to participate in the trial, is becoming more common. Through about 1980, defense attorneys rarely retained an expert economist to testify at trial. Now, for various reasons, defense attorneys have turned more and more to the courtroom use of economists. One reason is that they have recognized that there are some economists who work exclusively for plaintiffs and have developed mathematical calculation techniques and adopted source data that sound reasonable but invariably lead to a much larger claim of losses than necessary. Another reason is that attorneys have found that there is frequently more than one source of information from reliable sources and that plaintiff’s economist often chooses only those more favorable to large claims. Still another is that plaintiff’s economist may offer an intuitively appealing theory to a jury when, in fact the theory is economically irrational. Yet another reason is that your own nurse, doctor, or vocational rehabilitation expert differs significantly with plaintiff’s corresponding experts, on whom their economist relied. For example, your nurse may discover a much lower cost but satisfactory attendant care arrangement for a quadriplegic, your doctor will testify to a significantly reduced life expectancy, or your vocational rehabilitation expert can retrain the plaintiff for a much higher mitigating income job. Using these opinions and facts, your economist can develop a loss value that is not only lower than plaintiff’s, but is also fair to the plaintiff because it provides for his needs.

Plaintiff’s attorney must win two battles. First, he must prove that the defendant is liable. Once he does that, he still must convince the jury to make an appropriate award. You, the defense attorney, have a slight advantage in that you must win only one of the battles. If you can convince the jury that your client was not at fault, then the question of damages is moot. Failing to prove your client was not at fault means you must still have a chance to ensure that the award is not excessive. When you are unprepared to counter the plaintiff’s economist, you have not served your client well. Sections 1482 and 1483 that follow are designed to assist you when you depose and cross-examine the plaintiff’s economist.

§1481      Pretrial Preparation

You can be most effective when the testimony planned by the plaintiff’s economist is known before trial. Begin preparation as soon as you receive plaintiff’s expert designations. With sufficient time you can:

  1. Review any publications of the economist.

  2. Obtain and review reports, depositions, and trial transcripts of the economist in prior cases.

  3. Retain an economist to assist you. most active forensic economists maintain files on other economist frequently encounter and will already be familiar with the methods normally used by them.

  4. Obtain a copy of the expert’s report to be used in the case at hand.

  5. Obtain copies of all source documents referenced by plaintiff’s economist.

  6. Verify all formulas and computations.

  7. Examine overall methodology.

  8. Check for bias or advocacy.

  9. With your economist, master all the relevant economic points and prepare questions for deposition or trial.

  10. Determine the value of the case for settlement purposes.

  11. Learn whether the expert is actually trained and qualified to testify in the area in which he is designated.

  12. Learn whether the expert has ever expressed contrary opinions.

§1482      Guide to Depositions

In this section, you will find a list of topics that should be covered when deposing plaintiff’s economist. The topics are not phrased as questions, as each person will have his own preferred style. Instead, each item suggests an area that may be pursued. Of course, not all topics will be relevant to all cases, so you must pick and choose those that are appropriate. Also, the unique nature of some cases will dictate that you add topics not included here. Each topic is numbered and you will find that the numbers correspond to those in the following section 1483 where each topic is again covered but in greater detail so you will know just what you are looking for as you ask each of the questions in this section. At the deposition, you are merely discovering information that will be offered at trial.

How you conduct the deposition depends to some degree on whether you expect to settle or to go to trial. If you are rather confident that the case will be settled, then it may be better to strongly challenge and attack the economist at deposition. There is no point in holding back if you are not going to trial, and you may cause plaintiff’s attorney to see the weaknesses in his expert’s opinion.

When you are confident the case will go to trial rather than settle, it may be better not to challenge the expert. Instead, appear to accept everything he says. Do not point out any errors you note and do not restrict him to yes and no answers. At this stage, you want him to expand every answer and say as much as possible. The more you get into the record now, the more opportunity there is for you or your economist to find inconsistencies, errors, or illogical assumptions. Do not give him any warning of where you will attack, but make him commit himself to positions from which he cannot retreat at trial. Your questions should be thorough and if you are not given a direct answer, repeat the question. But do this in a manner that implies you are simply trying to understand the answer, not question it.

Before going to the individual topics, this is a good time to emphasize an excellent point made by attorney Carroll E. Dubuc, who has been quoted as saying “…it is as important to know how to corner an economist as it is to know when to do it. If you can pin the economist to his testimony in deposition and gather ammunition for the trial, you will have the advantage. If you destroy him at deposition, you will face a wiser and more formidable opponent at trial.”

Checklist of Topics for Examining Opponent’s Expert

  1. Ask for a current curriculum vitae or resume of the expert.

  2. Ask for a detailed list of the economist’s writings that have been published and for handouts from panel or conference presentations, particularly those dealing with forensic economics. Ask him to identify those publications that appeared in refereed journals.

  3. Find out how many times the economist has been retained in civil lawsuits, how many times he has been deposed, and how many times he has testified at trial. Then get an estimate of how many times he has been retained by plaintiff and how many times by defendant. Ask for him to name some of the defense attorneys for whom he has worked and a list of his last 4-years’ depositions and testimonies. (This list is mandatory and will have already been provided in District Court cases.)

  4. Ask if he testifies as an expert in other areas (e.g. vocational rehabilitation)? If so, which expertise came first? How did he receive training to become an expert in his second field? This may be obvious from his curriculum vitae and may be skipped. But, in some cases, it may show a lack of general knowledge in the area of economics.

  5. Has his testimony ever been disallowed, disqualified or impeached? If so, get details as to why he was not allowed to testify or how he was impeached and the topic in question. Also ask whether he has ever been withdrawn by his attorney after being designated, and why.

  6. When retained, many economists submit a questionnaire or information form to the attorney to be filled in and returned. This form requests the information needed for an evaluation. Obtain a copy of the form.

  7. Next, be sure to get a copy of the answers provided on the questionnaire or information form listed in #6. Find out who answered the questions: the attorney, the plaintiff, or someone on the attorney’s staff.

  8. Go through the economist’s entire file and ask if there is any thing relating to the case that is not in the file. Have copies made of anything you do not already have. If there are documents on which the economist has made notes, copy those also.

  9. Get a list of all other sources he consulted. These will probably be government documents or studies that he does not keep in his file. Did he collect any data from the Internet? If so, what were the websites? What other sites did he review? Get a complete citation so that your economist may also obtain a copy or ask plaintiff’s economist to send you a copy.

  10. Learn whether he has received any verbal information from his attorney, the plaintiff, other experts, employers, co-workers or any other persons. Ask him to summarize all verbal information received. Ask for copies of any notes taken during personal interviews or telephone conversations. These may be hand-written or have been typed into a computer.

  11. Obtain a copy of his report, any summary of his evaluations, all correspondence, and any notes or worksheets. Also get copies any computer printouts he may have generated, including drafts or non-used calculations.

  12. If he used any abbreviations or symbols in his work, ask him to define them. Still better, ask him to make a two column list with the abbreviations and symbols on one side and their meanings opposite. The same applies to any formulas used in his calculations.

  13. Determine the life expectancy of the deceased or injured plaintiff, as well as the life expectancy of the spouse. Ask for the specific table reference to make this determination. Also ask if he knows of any medical or insurance company reports that have indicated a reduced life expectancy or age rating.

  14. Determine the worklife expectancy used by the economist, and the source document referred to for this determination. Did he calculate worklife expectancy based on the age of the plaintiff at the time of injury or at the trial date? Was an adjustment made for the probability of an earlier-than-average death and, if so, what was the adjustment and on what evidence was it based?

  15. If the worklife tables were not used, did he use some age, say 65 or 70 and/or then adjust for the probabilities of living, participating in the workforce and actually obtaining employment? If so, get the details of the adjustments and the source of his information.

  16. If the case involves a wrongful death, what deduction was made for personal consumption and what was the basis, or study, relied on for the deduction? Was the deduction adjusted as each child reaches age 18? Was the decedent’s income or the family income used to estimate the amount of personal consumption?

  17. What is the plaintiff’s income history and what was the source determining that history? Ask for 1040’s or W-2’s or check stubs. If a union member, ask if he obtained an earnings history from the union trust fund and get a copy of the union contract and trust fund printout.

  18. Other than earnings from employment, was any other income included in the loss? For example, did the plaintiff have a moonlighting job or was he self-employed? If so, how long would it have continued and what documentation does he have on the earnings form that job? Ask for a copy of the Schedule C from his tax return.

  19. Were any fringe (employer paid) benefits included in the loss? If so, what are they and how was their value determined? Did the fringe benefit calculation include paid vacation, sick pay, and/or paid holidays? If so, was the annual earnings adjusted so as not to double count?

  20. Was any loss included for the period following the worklife expectancy? If so, get the details of the nature of the loss and how the amount was determined.

  21. What growth rate in earnings was used and how was it determined? If based on historical growth rates, get a specific source for the history used. Was it the plaintiff’s own wage growth from his job or was it from the average as reported in some study or government document? Get a specific citation for the document or a copy from the economist? What past time period was used in determining the trend in wages? Why was that time period selected? What occupational categories were used as reference and what mathematical method was used to determine the growth rate?

  22. What discount rate was used to convert future losses to present value? What source was used to determine the discount rate? If an average historical rate was used, learn what specific security was examined. For example, was it 6-month Treasury Bills, long-term Treasury Bonds, or some other security? Also, if an average based on historical rates was used, find out what time period was used to determine the average rate. Was it the same time period used to calculate the growth rate? What mathematical method was used to determine the average? (Simple average, compound growth rate, geometric average.)

  23. Some economists do not use separate earnings rates and discount rates, but take the difference between the two. Or, they may use what is called “real” rates where inflation is deducted from both rates and the difference is again used. Learn what the basis was for determining growth rates and discount rates as an economist could not know the difference between them without knowing what the separate rates are. Find out what time period was used in making the comparison between the two.

  24. What date was used as the present value date? If not the scheduled trial date, ask if he plans to update his calculations to the trial date.

  25. When the plaintiff is injured and there is no vocational rehabilitation expert retained by plaintiff, the economist may use a degree of disability as a measure of earnings impairment. If this is done, determine exactly what source he used to estimate the degree of disability and what medical information he has to support his estimate. Ask how he determined what type of work the plaintiff is capable of performing in the future and what he assumed the plaintiff would actually do in the future.

  26. Take the plaintiff’s worklife estimate and ask the economist to calculate what the earnings would be in the last year the plaintiff would have worked in his pre-injury job. For example: If the plaintiff is assumed to have an additional 20 years of worklife remaining, ask what his actual earnings are estimated to be in 20 years. Then ask the same question regarding any mitigation income job the plaintiff may hold.

  27. Next, ask for the present (discounted) value of what the plaintiff would be earning in his last year of work in both pre- and post- injury jobs.

  28. Were any adjustments made to account for income tax? If so, which elements of loss were adjusted and what tax rates were used? Did he include state as well as federal taxes? Was the tax based on prior year tax returns or estimates using the current tax tables? Was the employee portion of social security and Medicare included in the tax rate?

  29. If a tax adjustment was made on expected earnings, was a tax adjustment also made on the interest earnings expected from investing any award made by the jury? How was that adjustment made?

  30. What was the source of information for any future medical expenses, and for how many years will those expenses continue? You may need to ask some detailed questions in this area, depending on the degree of injury and the level of future medical needs. For example, is the economist assuming 24-hour-a-day care by a registered nurse, and what is his basis for assuming the need for a registered nurse rather than, say, a licensed vocational nurse or a housekeeper? Another example would be a special van for a quadriplegic. How did he determine the cost of such a van and did he deduct what would have been spent on a car had the injury not occurred?

  31. Is any loss claimed for the loss of the value of services he or she provided to the home and family? How was this value determined and what source of information was used to determine the number of hours lost and the value of services per hour?

  32. Obtain a list of any other losses the economist may have included in his estimate, and determine his sources and method of calculation.

  33. Are there any other assumptions he has made that have not been discussed? Are there any other documents or sources of information that were referred to but not yet mentioned?

  34. Does the economist plan to use any visual or graphic displays at trial that are not now in his file? If so, arrange to get copies before trial.

  35. Make sure that all formulas and methods of calculation have been fully explained so your economist can understand just how the evaluation was made and be able to verify the arithmetic and logic.

  36. Find out whether the economist will have a calculator or laptop computer at trial and be able to make estimates based on hypotheticals you may give him. If he says he will not, then consider giving him the hypotheticals now and ask him to have answers ready at trial.

  37. Is the evaluation final or will it be changed before trial? If changes are anticipated, ensure that you will be sent copies of those changes and have the opportunity to continue the deposition at a later date. Try to commit the economist to agreeing that the estimates are final and no changes will be made.

  38. Does he plan to testify to the value of any general damages? Specifically, does he plan to discuss what has become known as hedonic damages, also called the loss of the value of the enjoyment of life? (If so, please refer to the article in the DRI monograph cited at the beginning of this section written by Dr. Havrilesky specifically relating to hedonic damages. Note that some economists refer to these as the Value of Life rather than hedonics.)

  39. What was he asked to do? It may be to rebut the plaintiff’s report or prepare a separate damage calculation. (To be asked when deposing the defense economist.)

  40. What damages did you calculate? If only critiquing the other expert’s report, probably none. If so, get him to admit that he does not know what damages there may be. (To be asked when deposing the defense economist.)

  41. How many times have you worked for this attorney? How many times for this firm? This may be his first time to work with this attorney, but he may have worked many times with this firm. The jury may perceive some bias if the number is large.

  42. When you criticize another expert’s work do you apply the same model and assumptions to your analysis that you use in preparing your own reports? Have you changed the methods and assumptions used in preparing your reports in the last twelve months?  Ask for copies of prior reports to determine if he is consistent in his approach.

  43. Is there more than one accepted method for calculating economic damages? Discount rates? Growth Rates? Worklife expectancy? The answer to all of these questions is yes.

  44. Does each accepted method involve assumptions? Is economic theory, as a whole, based on assumptions? Get him to admit that almost every economic model must use assumptions, so it is not unusual to make assumptions for economic calculations. It is unusual if he says there are no assumptions.

  45. What assumptions did you use in critiquing the other expert’s report? What was your data source? Where is your report different from the other report? These assumptions could be worklife or retirement date differences. It will almost certainly include a different growth and discount rate. You will need to determine the assumptions made by the opposing expert so that your economist may address these differences at trial.


Gerald D. Martin holds a doctorate in Finance from Arizona StateUniversity. He is a Professor Emeritus at California State University,Fresno. He began his consulting service in 1974 and has testified in both state and federal courts across the country. He has an extensive list of papers, publications, and presentations to various groups. He has served on the board of editors of the Journal of Forensic Economics and the Journal of Legal Economics. Dr. Martin is a charter member of the National Associations of Forensic Economics and the AmericanAcademy of Economic and Finance Experts. He has consulted on several thousand cases in his career, divided near equally between plaintiff and defendant. Dr. Martin is the author of Determining Economic Damages, from which this article is excerpted.