Do I need an expert?
As an attorney, plaintiff or defense, you face this question in every case with economic damages. You know not every case requires an economic expert. When the economic damages are minimal or easily computed, such as past wage or profit losses, an expert may not be necessary.
Yet, even in simple cases, the economic expert can be a valuable resource to help develop a compelling story based on the facts of your case. Economic experts are valuable resources for both plaintiff and defense attorneys in presenting your case. They can help you capture damages you may not be aware of, or assist in refuting an optimistic damages claim by your opponent. Deciding not to use an economic expert, either as a listed expert or as a consultant, may be a costly mistake.
Due to the tort reform caps on non-economic damages, economic damages are receiving greater focus from both plaintiff and defense attorneys. An economic expert is especially valuable in assessing the present value of damages that continue into the future. In personal injury, wrongful death and employment matters, economists can provide guidance with more complicated damages such as potential losses of household services, retirement benefits, health benefits, stock options, future medical care costs, life-care plans, and adjustments for after-tax income.
When to Engage Your Expert
Early is better. Don't be the attorney that stumbles around at the last minute to beat an impending designation deadline, only to find your expert has been retained by your opponent. It is best to retain your expert too soon rather than too late, even if only on a consulting basis.
The expert's involvement during discovery can be critical in developing the facts of the case. An economist working on a consulting basis can assist with the discovery and fact-finding and other litigation support duties, such as research and identification and analysis of appropriate data. This is especially true in business damages cases, where documents and data may be voluminous and require an extended period to obtain and analyze.
If you decide to use your consulting economist as a testifying expert at a later date, he or she will probably have already completed much of the needed work and be familiar with your facts and litigation themes. Be aware, however, if you convert a consulting expert to a testifying expert, your communications from the beginning of the engagement are subject to discovery.
Your goal is to find an expert who can incorporate and support your theme with his analysis and testimony, yet remain credible and objective. Only a credible expert will bring value to your case.
Defense attorneys often argue that they never use an economic expert because they do not want to set a "floor" on the amount of the damages. However, it is difficult to win a damages battle with a cross examination alone. A well-prepared defense expert allows the defense attorney to tell their own compelling story of the case.
The consulting expert can be very useful to the defense by analyzing the plaintiff's expert report and helping to uncover any biases. Knowing that there is an expert on the opposite side could keep the plaintiff's expert more conservative in his or her estimates than otherwise.
When representing a plaintiff, your focus is on convincing the jury that the defendant harmed your client. It is essential to offer credible and persuasive economic testimony to prove that the damages your client suffered are real and substantial. Because the jury hears this evidence before it makes its decision as to liability, the economic expert's presentation on damages can help to focus the jury's attention on the importance of your case.
How to Effectively Use Your Expert
Your expert has the greatest impact when he or she is part of a compelling story. For example, the plaintiff attorney in a personal injury case should have the economist follow the medical and vocational rehabilitation experts, building on their story of the plaintiff's medical and job history. The economic expert, relying on their opinions, can present the "but for the incident" estimate of earnings and benefits loss. Each expert should be focused on his or her field of expertise. Capitalize on each expert's specific knowledge, skill, experience, training and education to prepare objective reports, testimony or critiques. It is very important not to push your experts to opine outside their fields.
The most impressively credentialed expert is not always the best witness. Juries are influenced by the credibility of the witness, not his or her resume. Try to avoid arrogant and condescending experts, whatever their credentials, experience or reputation. Ultimately, the expert must connect with a jury, not impress fellow experts. An expert who focuses exclusively on plaintiff or defense work is vulnerable to challenges for bias and may have become an advocate, whose agenda will be obvious to the jury. Vary the economic and other experts you use to avoid the "hired gun" label being placed on the same expert you use in case after case.
Make your expert part of your trial team. Be sure that the expert you choose will be committed to your case, within the constraints of objectivity and honesty, and is able to work and communicate effectively with you, other experts on the case and your office. You should meet personally with any potential expert because the meeting will give you the opportunity to assess the expert's presentation skills, objectivity and credibility. While the initial consultation on a case is often free, hiring the wrong expert for your case is not.
Most litigators will use an economic expert at some point. Take time to choose the expert that is right for your case and, most importantly, retain the expert early in the case.
The proper expert, appropriately utilized, will develop and present a compelling story of your case. Retaining your economic expert early provides you with a valuable tool. It gives both you and your expert the time necessary to learn the facts of your case. Your expert can point out possible strengths and weaknesses of your case.
The "best" expert for your case may not necessarily be the most credentialed, but the one who is most credible to you and the jury. The most expensive economic expert may be the one you do not hire or hire too late in your case.
As an economist specializing in the calculation of economic damages, Thomas Roney offers litigation support to attorneys throughout the country. He has testified as an expert witness in court, during depositions and arbitration, and before the Special Master in Victim�s Compensation Fund matters.
See his Listing on Experts.com.
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