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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