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
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