The Witness Box

Commenting on expert evidence, economic damages, and interesting developments in injury, wrongful death, business torts, discrimination, and wage and hour lawsuits

Tuesday, May 24, 2005

One economist's personal experience providing economic expert witness testimony: A day by day blow [Day 3]

5.19.05 (Thursday)

It is go time today!

I woke up around 6:30 and got the case facts back into my head. After breakfast and working out, I head down to the courthouse. The courthouse was in an annex of the county courthouse. What this really means is it is a office building that is has been converted into a courtroom. The actual courtroom is small. It is a very intimate space to say the least. The gallery and courtroom furniture is old overflow furniture from the ‘real’ courthouse I would bet; it sure looks that way.

This is a particularly strange case; it is lunch time and I still do not know who the plaintiff’s attorney is or even what he looks like. This could be very interesting. Around, 12:30pm the court breaks for lunch and I finally get to meet the attorney who has retained me! At lunch we go over the questions he plans to ask. His approach is pretty standard and he likes, as I had been informed, to ask more open ended questions. I am much more relaxed after this brief interaction with the attorney.

I get on the stand (finally) at around 1:35pm. The judge is a young and newly appointed. She seems very pleasant. The jury seems to be quite alert. It is a very demographically diverse jury that actually appears to mirror the demographics in the city. Wow…

The direct, in my opinion, went really smooth. Good body language and posture on the stand. No excessive swaying in the chair (actually I caught myself a couple of times swaying too much!) I tried to make sure that I kept good eye contact with the jury. Depending on the courtroom, it can be hard to keep eye contact with jury without bouncing back and forward between the jury and the attorney asking the question. This can look weird in a ping pong ball sort of way so I try to avoid it!

Some courtrooms are set up really nice, so that it is very natural to make good eye contact; this one is not. To make eye contact with the jury you have to turn quite a bit. Generally in these situations, where the courtroom is set up in this manner, I will only turn to the jury if I am trying to explain something. Otherwise I will just answer yes or no and keep my focus on the attorney who is asking the question. Overall, the jury appeared to be attentive and were writing down numbers and taking notes. I did not notice any head shakers in the bunch; there appeared to be some that were into the testimony. One juror in the back seemed particularly bored.

[One thing, I want to make sure I do in this case is get some feedback from the attorney as to how it went. Unfortunately, this is hard to do, since a lot of times if the attorneys does not win, they really do not want to talk about it. Not to say I blame them given how much money is put into some of these cases.]

In general, the cross examination involved the defense attorney trying to undermine the assumptions that I used in my economic analysis. He had questions, about my salary assumptions, fringe benefits assumptions as well as household services assumptions.

For example, he asked a series of questions that had to do with the plaintiff’s supposedly decreased life and work expectancy. In this case, the defendants were arguing that because of the deceased’s medical conditions he had a deceased work and life expectancy. The plaintiffs, the ones who retained us, were not conceding this was true of course. Anyway, the defense attorney asks questions like, ‘If a medical doctor testified that Mr. [NAME] would only have another 10 years or so max to work and live, would you have any reason to dispute it?’

In this question, as in a couple of others, he was clearly trying to undermine the assumptions that I used in my economic damage analysis. The answer to this question and all the others were pretty much the same: ‘No I do not agree with you’. However toward the end of cross examination he started to phrase his questions a little differently so that, in theory at least, I would have to answer it in a yes/no type of way.

Of course the ‘yes’ would undermine my model. A ‘no’ would sound silly. The life expectancy question was one of those types of questions.

For the life expectancy question, I answered: ‘No I would not dispute it, but it would change my analysis in anyway whatsoever’. I answered the other tricky questions that he had for me in the same way. I was really surprised that the defense attorney let me answer it this way since it really was not responsive to his question; especially the last piece that I just threw in there. He was rather young or maybe he just did not want to quibble in front of the jury. Not sure which, but in other cases, the defense has not let me off so easy with stray remarks such as that.

In retrospect, probably a better more clever way that would have been more responsive to his tricky question (aka trickaration) would have been something like: ‘I really do not have an opinion on this because it does not effect my analysis in anyway at all and I did not consider it’. It is the last piece that I wanted to get out to the jury in any way possible; in this case the defense attorney let me get it to the jury real easy.

The thing that shocked me to heck was that he did not cross me on either taxes or the personal consumption deduction. These things are almost always brought up by the defense attorney even if you did take them out. For some defense attorneys, unless you have a deduction equal to 100% of the deceased income, there is always room to get a lower number!

I did not account for either taxes or personal consumption in the first report; it is not clear what he was thinking. [I was ready with a supplemental analysis that did incorporated these factors into the economic damage analysis] Either they were not concerned about the damages or they felt that they had the case on liability or he just missed it.

In my mind the testimony went real well. The only major hitch was the delayed return flight back home!

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