Deposing & examining the expert statistician

AuthorTod F. Schleier
Pages899-958
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

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