Dispatches from the courtroom: Throwing punches at the opposing sides economic damage expert

The following is an account from one of our lostcompensation economist. He was just deposed in an employment discrimination case that involved the wrongful termination of a textbook sales woman.

The testimony went well, I think. The opposing attorney and his economist were not able to find any calculation problems in our analysis. This is always a good feeling.

Overall, the opposing attorney was polite, but he was just hell bent on getting me to say that since the plaintiff was on commission, we should have somehow accounted for this in the economic analysis. None of the car allowance or other fringe benefit stuff came up. It was really all about commissions for this guy.

We literally went around and around on the commission issue. He got quite frustrated at me at several points. He would ask a question one way, then another way. He would get the same answer, which of course was not the one he wanted, over and over again. I even started reading the report to him at points. (Not in an arrogant way, but to just point it out to him what our report actually said.)

He also kept trying to restate my testimony, something to the effect 'so what you are saying is [this].." Much to his displeasure, I would simply say 'no, what I am saying is [that]....

This line of questioning continued for many rounds. He would say, 'but isnÂ’t that what I said?', I would say no. At one point, we were quibbling over what he thought said. Felt a little like grade school at points.

At many points, where he would actually have a valid point I felt, he just would not stop with his questions or he would, because of his irritation, ask it in an open ended way that allowed for an explanation.

For example, he said 'So you do not think that it was appropriate in this case to do a projection of her future commissions with [the previous employer]?' I would answer, no. Instead of letting it go and having the potentially contradictory no answer on the record, he was literally ready to fight and would indignantly say something like 'and why not'.

Of course, the 'and the why not' question allowed me to go on add-nausea about the labor market and how it works so wonderfully (which it does!). The workings of the labor market, I would explain, allow me to focus on her actual earnings no matter how they were earnedcommissionn or base salary. That is a person with her skill set will earn what her skill set is worth. This value is reflected by her past earnings history in this case.

There were also numerous documents in the file that suggest that the earnings projections that we made were very conservative. For instance, in the 4 months before the company fired her, she earned more in commissions than she had the previous year. The opposing attorney actually, by mistake no doubt, made me aware of this fact.

To counter these types of facts, he would, at least I felt, introduce his own testimony on the issue. His testimony and ‘representations’ about other’s testimony in the case of course made the facts at issue untrue or true as he needed them. Of course this further lengthened the deposition, because I would not agree to any of his 'facts' or his representation of the facts. And so on and so on....until the break of evening we went.

Overall it was a challenging depo.