Presenting Economic Testimony at Trial

In his blog last year, Evan Schaeffer attached an article by Chicago attorney Paula E. Litt titled “Tips for Making Damages Testimony Come Alive.” Ms. Litt’s article offers twelve tips: (1) Speak plainly; (2) Establish credentials wisely; (3) Tell a good story; (4) Play from higher ground; (5) Show pictures; (6) Get the expert moving; (7) Use examples; (8) Keep it simple; (9) Be enthusiastic; (10) Don’t get caught short; (11) Know your expert; and (12) Don’t underestimate the jury.

Ms. Litt handles mostly copyright and insurance coverage cases so some of the advice seems tailored toward business litigation (it would be odd for an accident attorney to “be enthusiastic” when discussing with an expert the loss of future earnings of a father who was killed in a car accident). I also do not agree that attorneys should assume that the jury knows as much about the damages as the lawyer does, which she articulates under the otherwise sound notion of not underestimating the jury.

The only other “problem” with this article is that most of her sound advice is really directed to the expert, not the lawyer calling the expert to testify. As much as we would sometimes like to, we cannot change our witnesses.

This leads me to economic experts. The problem with economists is that you typically have only a handful of economists in your jurisdiction who: (1) can explain these dry issues to a jury in a meaningful way, and (2) are willing to testify. The few economists who do testify, testify way too often, which hurts their credibility with the jury.

In a typical personal injury trial for my law firm, our lawyers call the injury victim’s treating doctors, who cannot be attacked for financial bias. In contrast, the defense lawyers typically use a hired gun medical expert who essentially testifies for a living. Under this scenario, I like my chances with the treating doctor over the hired gun expert who has testified for the same insurance company on scores of other occasions.

But if the personal injury lawyer brings an economist to trial who also has a hired gun flavor to him or her, it bleeds the integrity of the lawyer’s case. But if the attorney needs an economist to put on the evidence, what choice is there? Perhaps the answer to this question is another question: does the personal injury lawyer in Maryland even need to call an economist at trial? I will answer this question in an upcoming post.

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  • Tony

    I certainly agree that well-traveled experts, for all the skill they bring to the table, may hurt a case if they appear to be a hired gun. Curiously, in almost 16 years of doing tort work on and off, I don’t think I’ve ever had an expert of any kind tell me that their work isn’t evenly split between defendants and plaintiffs. Go figure. I also agree that treating physicians are more credible, especially if the treating doctor is plaintiff’s personal physician. Just telling you want caught my eye when I did this work as defense counsel. By the same token, I wonder about the efficacy of a treating physician that may come from a practice that has a dozen or more conveniently located offices and where the majority of the patients are lawyer referrals.

    I didn’t try to out-duel an expert on the substance of his/her expertise. That may be more my own shortcomings than anything else. So I didn’t argue medicine with a doctor or economics with an economist. I think that’s fighting on their terms and that’s why the witness is the expert, right? And that’s why I have my own expert — not in a knee jerk fashion, but as warranted by the case. Because a jury may well split the difference between dueling economic experts on lost future earnings, or worse, use the defense expert’s numbers as a floor, I tended to go without my own economic expert in all but the most high-exposure cases (and frankly, that’s probably just so I’m not second-guessed later). So what is the trial lawyer the expert in? Persuasion, poking holes, raising questions about bias, and otherwise manipulating (too strong a word?) the things that go on in a trial. The average expert (I know, an oxymoron) usually underestimates the importance of these factors. Then they’re fighting on our terms.

    I mentioned before that economists can be tricky. As we know, their conclusions are usually built on one assumption after another. Usually, they’ll make some conservative assumptions to minimize attack but nevertheless they end up with a gigantic present value of some equally gigantic figure that represents future loss earnings, value in kind, etc. I admit that I found it tough to argue with the conclusion if the expert leads you through the numbers (the numbers don’t lie, or do they?).

    From the defense perspective, it sometimes helps to look at the economist’s report, not as an economist would, but as the average middle-class juror might.

    For example, in one case I handled, plaintiff’s economist prepared a reported indicating that plaintiff’s decedent would have earned a 7-figure total over his lifetime, even after giving the defense some favorable assumptions. Since plaintiff’s decedent earned a good, but by no means princely, wage and was in his 30s when he died, the large loss figure by itself didn’t surprise me and it certainly flowed nicely from the calculations. However, there was another number which, even if true, was a surprise that I felt contradicted the expectations of the average juror. Casually noted in the calculations was the expectation that plaintiff’s decedent would be earning something around $400,000/yr in 20 or so years hence. According to the expert, the decedent’s W-2 in calendar year 20XX would have listed wages of $400,000 or something around that. Of course, I had no idea if this was true or not but I thought the jury, based on their own expectations, would find that challenging to believe. And if I could raise a question about that, perhaps the jury would question other things about the expert’s testimony. I never found out because the case settled for a value driven by liability questions rather than the damage numbers.

  • Ron Miller

    I agree with pretty much everything you said here. A byproduct of your point is the length of a lawyer’s cross examination of the other party’s expert. I believe the minute a lawyer starts getting bogged down in detail that is of marginal relevance anyway, the jury tunes out the rest of the cross. The good lawyer makes the points he or she must make and gets out while the jury is still listening.

    With respect to your point on personal injury lawyer referred treaters in auto accident cases, our lawyers avoid referring clients to doctors like the plague. But some people (1)do not have a doctor and struggle to get an appointment with a new doctor and/or (2) do not have medical insurance or cannot afford the co-pays. At this point, the lawyer has no choice but to help the patient find a doctor so they can get the treatment they need, regardless of how it looks on cross-examination.

  • Tony

    On the referrals to doctors, of course you’re right that some plaintiffs don’t have personal physicians, or a car to drive to a doctor that may not be accessible by public transportation. But I am baffled by the handful of doctors out there that are simply played out, for both defense and claimant. For too many cases, you see the same names, same offices. A guy can get jaded.

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