EXPERT ECONOMIST: 14 RULES
By Jerome M. Staller, Ph.D.
I began offering my services as an expert economist more than 25 years ago and have testified in literally thousands of cases. This experience qualifies me, I hope, as an expert in the use of experts, especially the use of expert economists. Here, I offer a few insights I have garnered over the years. I hope these observations are useful to you. I guarantee that if you heed most of the "rules" below you will have helped your economist do the best job he or she can do for you and your client.
Retain experts early enough to assist with discovery. This should be a no-brainer, yet I still get calls asking if I can testify in a case that is being tried next week. To produce a credible, defensible and thorough damages argument, I need specific and detailed data, much of which can only be obtained through discovery. This takes time.
Work to understand relevant technical issues. The best attorneys I have worked with share one significant trait: they have an avid curiosity about the details of all phases of each case -- liability, damages and everything else, and work to understand all relevant technical aspects of a claim.
Engage in specific discovery for each damages claim. Claims for economic damages can involve several elements: lost income, lost household services, lost fringe benefits, different elements of survival and wrongful death claims. Your economist requires specific data relevant to each of these elements. Help your economist by discovering facts relevant to each element of damages.
Think through the logic of each separate aspect of the claim. What aspects of the plaintiff's particular situation may affect the economic damages argument? Is the industry the plaintiff works in affected by any special economic factors that may not be obvious? Was a self-employed plaintiff's income the result of the disabled plaintiff's labor, or was it return on investment? Would a preexisting health condition have limited the plaintiff's ability to earn income, regardless of the injury at issue? Is it reasonable to argue that a disabled construction worker could become a computer specialist?
Use your expert to assemble, review and analyze data. Your expert will help you marshal your facts and use them to compose an effective narrative. Use your economist to help guide depositions and discovery -- he knows best what you will need to build a credible narrative as far as economic issues.
Develop the theme of the damages case with the expert. A damages argument is the story of differences: what was the plaintiff's economic status before the incident, and what was the plaintiff's economic status after the incident? The jury can best understand these differences if they are presented as a narrative. Your economist can help you frame the theme of this narrative and can supply facts and theories enabling the jury to understand and accept the narrative.
List the strengths and weaknesses of your opponent's case. Your damages argument doesn't exist in a vacuum: the jury will compare and contrast your damages story with the opposing side's argument. Anticipating what the opposing side will highlight helps you compose a defensible argument.
Use redirect, if at all, to open doors, not to reopen closed doors. This should be obvious -- if cross has been particularly effective in a certain aspect, why revisit? Why refocus attention on a negative? Move on and accentuate your positives.
Develop a "student-teacher" dialogue during direct. Juries are anxious to learn. Jurors need information to support their decisions, and the best way to give them then information they need is to have your expert teach them.
Address the weaknesses of your case on direct. Again, this should be a no-brainer. Why wait for the opposing side to drop a bomb on cross? Neutralize any negatives as soon as possible. Wherever possible, play on your own turf.
Never cross examine the opposing expert in deposition. Instead, inquire and learn. A deposition should not be a warm-up for trial: You want to learn as much as possible and not tip your hand. Aggressive questioning during depositions is almost always counterproductive
Never hide information from your expert. Chances are, whatever facts you withhold from your expert will be known to the opposing side, which could lead to devastating cross.
Never ask your expert to go beyond the scope of his or her expertise. I see this more often than I should: economists offering opinions that only a medical or vocational expert is qualified to provide. Why risk impeachment? In many cases the only way to build a defensible and credible damages argument is by assembling a team of experts -- vocational, medical and economic. Your economist can tell you what the limits of economic expertise is in the particular case, and whether he or she will need opinions from other types of experts.
Never make your expert your advocate. Instead, have your expert zealously advocate his or her opinion.
This article originally appeared in Medical Malpractice Law & Strategy Vol. 24, No. 3, Dec. 2006. Reprinted with permission of ALM Properties Inc.