Do I need an expert?
You may not "need" an economic expert. In many cases, economic damages are minimal or easily computed past wage or profit losses. But, just as most of us do not "need" a drill, but occasionally find a hole useful, an economic expert can be a very valuable resource in developing and forcefully presenting a compelling story based on the facts of your case. That story will be shaped by how effectively you choose your expert and present expert testimony. You can't choose your facts, but you can select a particular expert for specific issues. The right economic expert for your case can do far more than just testify at trial, and deciding not to use an economic expert may be a costly mistake.
With tort reform caps on non-economic damages, the economic damages have become relatively more important and will receive greater focus by both plaintiff and defense attorneys. An economic expert will be especially valuable when damages continue into the future and must be placed in today's dollars.
How can the expert help me?
Typically, the economist will be used to identify and measure past and future economic losses, such as wages or profits, or in determining liability in discrimination cases. You retain the economist to prepare an expert report and testify on the economic damages in your case. You can also hire the economist on a consulting basis to review the opposing expert's report, educate you on the technical aspects of the economic analysis pertinent to your case or provide a preliminary estimate of damages.
Balance the expected benefits of a consultant relationship against the expected costs. It is possible that the hourly fee for consulting time may be less than the amount the same expert charges for testimony. If you decide at a later date to list your consultant as an expert and have them prepare an expert report, then some of their work will already be completed. The expert will be familiar with many of the facts of the case and litigation themes you are developing. The expert that can incorporate and support your themes with his analysis and remain credible and objective will be a great value to your case.
The expert's involvement during discovery may be critical to the development of facts and strategy in your case. In the early stages of your case preparation, a consulting economist can assist with the discovery and fact-finding and other litigation support duties, such as research and identification and analysis of appropriate data. This is especially true in business damages cases, where documents and data may be voluminous and require an extended period to obtain and analyze.
An experienced expert may have worked on hundreds of cases during their career. Use this expertise and experience. They can advise you on deposition and interrogatory questions, types of demonstrative evidence to use and help manage your client's expectations regarding the potential magnitude of the damages in the case. Having an economic expert on your team also signals to the other side that their expert's opinion will not go unchallenged. Your economic expert may also suggest that other potential experts be considered for retention, from areas of expertise such as vocational rehabilitation, human resources, business practices, or statistics.
An expert for the defendant
Your decision to hire an economic expert is more complicated if you represent the defendant than for the plaintiff's attorney. Some attorneys argue that they never use a defense economic expert to avoid setting "a floor" on the amount of the damages. I argue that they should consider involving an expert throughout the litigation to consult with regarding the opposing expert, even if they do not list the expert. The consulting expert can be very useful on a consulting basis by critiquing the plaintiff's expert report, suggesting deposition questions and helping you to prepare for cross examination at trial.
There is always a methodology, an assumption, source or calculation that can be questioned in a report and a seasoned expert should be able to find these areas relatively quickly and uncover any biases the plaintiff expert may show. Your economist may also have copies of the plaintiff expert's past reports and depositions to assist you with your cross, especially if the opponent has testified in the past using different and/or more optimistic growth rates, retirement ages, or average benefits values.
If you list your expert and have them prepare an economic damages report, there is a possibility that your economist will calculate a loss amount higher than the plaintiff's economist. This will be less likely if the expert has been involved on a consulting basis since the early stages of the case and is able to give you a preliminary estimate of the likely damages prior to preparing a written report or being listed as a testifying expert. Be careful that a potential finding of a much lower estimate of damages than the opponent in the case may lead the jury to "split the difference" between the two amounts. However, as previously discussed, knowing that there is an expert on the opposite side may tend to keep the plaintiff expert more conservative in his estimates than otherwise.
An expert for the plaintiff
If you represent the plaintiff, your focus is on ultimately convincing the jury that there is liability on the part of the defendant. If the potential damages in the case are great, this fact itself can underline the magnitude of the defendant's negligence. The current trend toward tort reform and limits on non-economic damages will tend to make the economic damages relatively larger as a proportion of total damages. Also, the damages presentation during trial will likely precede the jury's determination of liability.
An effective expert presentation on damages will have the potential to focus the jury's attention on the importance of the case. Consider who else you can rely on to present damages testimony. Are there fact witnesses or other witnesses that can qualify as experts to provide more effective testimony on forecasting, present values and historical knowledge than an economist? Without an economist in a wrongful termination case, for example, you need may need witnesses to testify on lost earnings, future wage growth, promotions, and lost medical and retirement benefits. You might use a life-care planner to establish care costs and lost household services, but who is able to present value these damages? All the above factors need to be weighed when deciding whether or not to use an economic expert.
Your expert, plaintiff or defense, will have the greatest impact as part of a compelling story used to develop your case. For example, if you are the plaintiff's attorney in a personal injury case, first use your medical experts to explain clearly what injury was suffered by the plaintiff due to the actions of the defendant and how the injured plaintiff now differs from before the incident. Have a vocational rehabilitation expert review the plaintiff's job history and medical reports and perform necessary occupational testing. The rehabilitation expert can explain why the plaintiff will be unable to return to work in their previous capacity and what they will be able to do in the future, how much training will be involved and the cost of that training. Finally, the economic expert, relying on the opinion of your vocational expert, can present the "but for the incident" estimate of earnings and benefits from the date of the injury and continuing to retirement, less the likely offset earnings from any alternative occupation post injury. Have each expert focus only on their field of expertise. Do not try to save money by pushing your experts to opine outside their areas of expertise.
When should I hire an expert?
Don't be the attorney that stumbles around at the last minute to beat an impending designation deadline. There is value in consulting with an economic expert at the early stages of the case, even if you do not retain them immediately. Many experts do not charge for an initial consultation. They can offer some free advice to get you started as to the data they will eventually require to form an opinion and the necessity of retaining other experts. Your economic expert will also be able to give you an objective analysis of the strengths and the weaknesses of your case.
Do hire your economic expert before discovery ends. The sooner the expert is "on your case," the sooner they become familiar with critical facts and the more time they will have to work with you to prepare effective demonstrative evidence of the damages. By involving the expert early on, you also reduce the risk of discovering a week before trial that the expert you named six months ago has opinions that do not fit your litigation theme and do not help or are even adverse to your position.
Who Is the Right Expert for Your Case?
The most expensive or impressively credentialed expert is not always the best witness. An ivory tower academic who looks perfect on paper can bore the jury to tears. Try to avoid arrogant and condescending experts, whatever their credentials, experience or reputation. Ultimately, the expert must connect with a jury, not impress fellow experts. An expert who focuses exclusively on plaintiff or defense work is vulnerable to challenges for bias and may have become an advocate, whose agenda will be obvious to the jury. Experts are retained for their expertise and cannot change their methodology to suite the side they represent. You may also want to vary the experts you use to avoid the "hired hand" label being placed on the same expert you use in almost every case.
It is important to consider the purpose of the economic expert in your case. A testifying expert will testify in deposition and trial and their presentation skills will be highlighted. They must appear and act credibly. A consulting expert should be able to analyze and critique the plaintiff's expert report, assist with discovery and be able to educate you about the strengths and weaknesses of your case. It is assumed that your expert, for plaintiff or defendant, has the knowledge, skill, experience, training or education to qualify as an expert. The expert must also have the ability to credibly, clearly and convincingly explain their opinions, both to you and a jury.
Make your expert part of your trial team. Be sure that the expert you choose will be committed to your case and able to work and communicate effectively with you and your office. Seek assurance that the expert has the time necessary for your case and you. During critical periods of your case development, you may want to speak or meet directly with your experts, not just their answering machine or their assistant.
Summary
It is likely that you will use an economic expert. Choose the right one for your case.
In 1998, the Federal Judicial Center surveyed federal judges about their experiences with expert testimony in civil cases. Preliminary findings included the following:
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Economists were the single most frequent specific type of expert.
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The two most common problems cited by judges were experts who were not objective and the excessive expense of experts.
With caps on non-economic damages and other tort reform changes nationwide, economic damages have become relatively more important. The proper expert appropriately utilized can be a very valuable resource in developing and presenting the story of your case. Retaining your economic expert early on will provide you with a powerful tool. Give the expert time to learn the facts, advise you of the strengths and weaknesses of your case and prepare a report or critique that is focused and objective. The "best" expert for your case may not necessarily be the most credentialed, but the one who is most credible to you and the jury. The most expensive economic expert may be the one you do not hire.
Thomas Roney
President Thomas Roney LLC
3102 Oak Lawn Ave.
Suite 700 Dallas, Texas 75219
troney@thomasroneyllc.com
(214) 210-2917
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