Deposing & examining the expert statistician

• Author: Tod F. Schleier
• Pages: 899-958

D&E: EXPERT

STATISTICIAN

7-1

CHAPTER 7

DEPOSING & EXAMINING

THE EXPERT STATISTICIAN

I. STATISTICAL EVIDENCE IN DISCRIMINATION LITIGATION

§7:01 To Prove Disparate Impact

§7:02 To Prove Disparate Treatment

[§§7:03 – 7:04 Reserved]

II. SURVEY OF SUPREME COURT DECISIONS

§7:05 Basic Statistical Methodology Condoned—Castaneda

§7:06 Standard Deviation Analysis Applied in Hazelwood

§7:07 Use of Statistics to Establish or Defeat Liability: Teamsters

§7:08 Appropriate Comparison Pool—Wards Cove

§7:09 Reliable Methodology—Daubert

[§7:10 Reserved]

III. BASIC STATISTICAL CONCEPTS AS APPLIED BY COURTS

A. Multiple Regression Analysis

§7:11 Basic Principles

§7:12 Bazemore: Analysis Need Not Consider Every Variable

§7:13 Omission of Major Factors May Render Analysis Inadmissible

§7:14 Application in Disparate Treatment Cases

[§7:15 Reserved]

B. Statistical Signif‌icance

§7:16 Basic Principles

§7:17 “.05 Level” of Statistical Signif‌icance

§7:18 Standard Deviation

[§7:19 Reserved]

C. Sample Size, Aggregation, Disaggregation

§7:20 Sample Size

§7:21 Basic Principles of Aggregation, Disaggregation

§7:22 When Aggregated Data Is More Probative

§7:23 Reduction-in-Force Cases

[§7:24 Reserved]

IV. IN PRACTICE: WORKING WITH EXPERT STATISTICIAN

§7:25 Retain Expert Statistician Early

§7:26 Identify Discriminatory Employment Practice

§7:27 Determine Proper Sample Size

D&E: EXPERT

STATISTICIAN

Deposing & Examining Employment Witnesses 7-2

§7:28 To Help Formulate Discovery Requests

§7:29 During Trial

[§§7:30 – 7:34 Reserved]

V. DEPOSITION CHECKLIST

§7:35 Background Information

§7:36 Publication History

§7:37 Experience as Expert Witness

§7:38 Retention of Expert and Bias

§7:39 Sources of Information on This Case

§7:40 Scope of Assignment

§7:41 Methodology

§7:42 Sample Size, Aggregation, Disaggregation

§7:43 “Statistical Signif‌icance”

§7:44 Opinion

[§§7:45 – 7:49 Reserved]

VI. EXPERT STATISTICIAN AT TRIAL

A. Direct Examination of Plaintiff’s Expert

§7:50 Key Facts

§7:51 Strategy

§7:52 Checklist

§7:53 Model Direct Examination

§7:53.1 Expert Has Exemplary Background in Statistics

§7:53.2 Expert ’s Assignment: to Analyze RIF Selection Process

§7:53.3 Expert Teaches Jury Basic Statistical Concepts and Methods

§7:53.4 Expert Explains RIF Policy

§7:53.5 Factors Analyzed: Years of Service, Performance Appraisals

§7:53.6 Statistical Analysis Reveals: Employees Over Age 40 Twice as Likely to

Be Declared Surplus

§7:53.7 Statistical Analysis Reveals: Employees Over Age 40 Terminated at

Higher Rate Than Those Under 40

§7:53.8 Statistical Analysis Reveals: “Years of Service” Not a Factor in RIF

§7:53.9 Statistical Analysis Reveals: “Performance Appraisals” Had Negligible

Impact on RIF

§7:53.10 Statistical Analysis Reveals: “Professional” Status Employees Over Age

40 More Likely to Be Terminated Than Those Under 40

§7:53.11 Statistical Analysis Reveals: Employees Over Age 40 Hardest Hit by RIF

Company-Wide

§7:53.12 Expert Opinion: RIF Had Disproportionate Effect on Employees Over

Age 40, Which Was Not Result of Chance or Random Occurrence

[§7:54 Reserved]

B. Cross-Examination of Plaintiff ’s Expert

§7:55 Key Facts

§7:56 Strategy

§7:57 Angles of Attack

§7:58 Model Cross-Examination

§7:58.1 “Years of Service” Factor Cannot Be Source of Age Discrimination

§7:58.2 Expert Based His Opinion on Incomplete Data (95 Scores Missing)

§7:58.3 Best Performing Employees Were Not Affected by RIF

§7:58.4 Expert Had Impor tant Data Available, but Did Not Analyze It

§7:58.5 Expert Aggregated Data, Even Though Department-by-Department

Analysis Was Feasible

§7:58.6 Expert Failed to Consider Other Factors That Might Impact RIF

§7:58.7 Each ABC Plant Had its Own Decisionmakers

[§7:59 Reserved]

D&E: EXPERT

STATISTICIAN

7-3 Deposing & Examining the Expert Statistician

VII. SUMMARY CHECKLIST

§7:60 Summary Checklist—Expert Statistician

FORMS

7-A Request for Production of Documents

7-B Plaintiff ’s Closing Argument on Statistical Evidence

7-C Defendant’s Closing Argument on Statistical Evidence

7-D Plaintiffs’ Motion to Strike Defendant’s Statistical Experts

7-E Defendant’s Motion in Limine Re: EEO-1 Data

7-F Defendant’s Motion in Limine to Exclude Plaintiff’s Proposed Statistical Expert from Testifying at Trial

7-G Defendant’s Motion in Limine to Exclude Statistical and Anecdotal Evidence of Disparate Impact