Deposing & examining the expert economist

• Author: Tod F. Schleier
• Pages: 799-898

D&E: EXPERT

ECONOMIST

6-1

CHAPTER 6

DEPOSING & EXAMINING

THE EXPERT ECONOMIST

I. ECONOMIC DAMAGES AVAILABLE UNDER FEDERAL DISCRIMINATION STATUTES

A. Overview

§6:01 Title VII & ADA Cases

§6:02 ADEA Cases

§6:03 Civil Rights Cases [§§1981, 1983]

§6:04 Rehabilitation Act

B. Back Pay

1. Back Pay Basics

§6:05 “Make Whole” Remedy

§6:06 Computation Basics

§6:07 Recovery Period

§6:08 Components of Back Pay

§6:09 Prejudgment Interest

2. Mitigation of Damages

§6:10 Plaintiff Must Seek Substantially Equivalent Employment

§6:10.1 Within a Reasonable Distance of Home

§6:10.2 Acceptance of a Lower-Paying Job

§6:10.3 Apply for an Open Position with the Defendant-Employer

§6:11 Burden of Proof on Defendant

3. Terminating Back Pay Period

§6:12 Basic Principles

§6:13 Refusal of Unconditional Offer of Reinstatement

§6:14 After-Acquired Evidence

§6:14.1 Subsequent Employment and Damages Cutoff

§6:15 Employer-Caused Disability: Damages Cutoff?

[§§6:16 – 6:19 Reserved]

C. Front Pay

1. Basic Principles

§6:20 Make-Whole Remedy

§6:21 Alternative to Reinstatement

§6:22 Court or Jury Issue?

§6:23 Length of Award; Speculative Damages

§6:24 Factors Considered in Awarding Front Pay

§6:25 Hybrid Awards

D&E: EXPERT

ECONOMIST

Deposing & Examining Employment Witnesses 6-2

2. Limits

§6:26 Mitigation Required

§6:27 Do Damages Caps Apply?

3. Discounting to Present Day Value

§6:28 Goal: Basic Concepts

§6:29 Burden of Proof on Plaintiff

§6:30 Determining the Rate

[§§6:31 – 6:34 Reserved]

D. Offsets

§6:35 Availability of Offsets Rests With Court’s Discretion

§6:36 Application of Collateral Source Rule

§6:37 Employer-Funded Benef‌its

E. Adverse Tax Consequences

§6:38 Basic Principles

§6:39 Cases Supporting “Gross Up”

§6:40 Cases Refusing to Allow “Gross Up”

§6:41 Compare: Attorneys’ Fees

§6:42 In Practice: Support Request for Gross Up With Expert Testimony

[§§6:43 – 6:49 Reserved]

II. USE OF EXPERTS TO PROVE ECONOMIC LOSSES

A. By the Plaintiff

§6:50 Why Hire an Expert?

§6:51 When to Hire

B. By the Defense

§6:52 Why Hire an Expert?

§6:53 When to Hire

[§6:54 Reserved]

III. DEPOSING THE EXPERT ECONOMIST

A. Goals

§6:55 Cast Doubt

§6:56 Determine & Attack Underlying Assumptions

B. Deposition Checklist—All Cases

§6:57 Background Information

§6:58 Document Retention Policy

§6:59 Experience as Expert Witness; Bias

§6:60 Retention in This Case

§6:61 Assignment and Assumptions

§6:62 “Present Value”

§6:63 Mitigation of Damages

§6:64 Wage Growth

§6:65 Fringe Benef‌its

§6:66 Discount Rate [Interest Rate]

§6:67 Work-Life Expectancy

§6:68 Compare Experts’ Reports and Conclusions

§6:69 Completed Work

C. Deposition Checklist—Misappropriation of Trade Secret Case

§6:70 Qualif‌ications and Experience

§6:71 Assignment and Information Relied Upon

§6:72 Attack Causation

§6:73 Attack Assumptions and Conclusions

[§6:74 Reserved]

D&E: EXPERT

ECONOMIST

6-3 Deposing & Examining the Expert Economist

IV. EXPERT ECONOMIST AT TRIAL

A. Direct Trial Examination of Plaintiff ’s Expert Economist

§6:75 Key Facts

§6:76 Strategy

§6:77 Checklist

§6:78 Model Direct Examination

§6:78.1 Witness Is Qualif‌ied to Testify as an Expert in Economic Damages

§6:78.2 Expert Used Standard Methodology to Calculate Lost Earnings

§6:78.3 Calculation of “but for” Earnings: Step One—Determine Historic Earnings

§6:78.4 Step Two: Determine Growth Rate

§6:78.5 Step Three: Determine Projected Earnings Total Over One Million Dollars

§6:78.6 Plaintiff ’s “but for” Earnings Total Over One Million Dollars

§6:78.7 Determine Actual Earnings and Lost Earnings

§6:78.8 Lost Earnings Must Be Discounted to Present Value

§6:78.9 Expert Calculated “Lost Stock” Damages

§6:78.10 Final Damages Analysis Includes Value of Lost Wages and Lost Stock

[§6:79 Reserved]

B. Cross-Examination of Plaintiff’s Economic Expert

§6:80 Key Facts

§6:81 Strategy

§6:82 Angles of Attack

§6:83 Model Cross-Examination

§6:83.1 Expert Is a Hired Gun Who Has Testif‌ied Repeatedly for Employees

Represented by Plaintiff’s Counsel

§6:83.2 Expert Conducted No Independent Research to Support His Opinions

§6:83.3 Witness Is Not an Expert on Liabilit y

§6:83.4 “But for” Earnings Calculation Includes More Than Just Wages

§6:83.5 Plaintiff Earns More in Salary at His New Job Than He Did at ABC, Inc.

§6:83.6 Expert Failed to Quantify Benef‌its Provided by Dr. Jones’ New Employment

§6:83.7 Expert Did Not Calculate Cost of Dr. Jones’ Commute to ABC, Inc.

§6:83.8 Expert Does Not Know What Benef‌its Dr. Jones’s New Employer Provides

§6:83.9 Expert Used Two Different Retirement Dates, Resulting in Higher

Estimated Damages

§6:83.10 Expert Did Not Consider Alternative Work-Life Scenarios

[§§6:84 – 6:89 Reserved]

V. EXPERT ECONOMIST AT ARBITRATION

§6:90 Brief Background Testimony

§6:91 Concise Explanation of Methology: Assumptions and “But-For Earnings”

§6:92 Next Step: How Earnings Would Change in the Future; Growth Rate Used

§6:93 Work-Life Expectancy

§6:94 Calculation of But-For Earnings

§6:95 Subtract Interim Earnings—Mitigation

§6:96 Present Value Adjustment—Keep it Simple

VI. SUMMARY CHECKLIST

§6:97 Summary Checklist—Expert Economist