Helping your economic expert help themselves - Part II

Helping economists answer hypothetical questions.

From the economist's standpoint, hypothetical questions can be some of the toughest types of questions to answer. Here is a some pointers offered by David Tunno, a trial consultant, and Expert Witness Communications on how to handle hypothetical questions from the opposing attorney.

1. Force counsel to be specific.

If the hypothetical question is ultimately irrelevant to the case facts, that contrast will be made more easily with specificity of the hypothetical. Generalities lead to inaccuracies.

2. Remind the jury that you are answering a hypothetical.

Opposing counsel will want the jury to forget this fact and confuse this testimony with the case itself. Incorporate the reminders in your answers, for example, "In the case of your *hypothetical* situation - my answer is 'Yes'."

Are damages in employment discrimination cases going to get more complicated?

Supreme Court gets 42 USC 1981 case


Interesting case suggests that damages in employment cases may get more complicated. If the Supreme Court upholds the 9th Circuit's decision there may be an increase in the number of cases involving businesses; esp. closely held businesses that are owned and operated by minorities. Economic damages in these types of cases would basically involve a valuation of a business or loss profits which all else equal tends to be more involved than lost wage calculations.

Read More....(see below)

Supreme Court gets 42 USC 1981 case By Ross Runkel on Discrimination - Race Section 1981 prohibits race discrimination in the formation, termination, and performance of contracts.
Can a person who is not a contracting party recover under 1981?

That's what the US Supreme Court will decide in Domino's Pizza v. McDonald, Docket No. 04-593, certiorari granted April 25, 2005. The allegations were: McDonald, an African American, was the president and main shareholder of JWM, a corporation. JWM entered into contracts with Domino's. Domino's made it difficult or impossible for JWM to perform, propelling JWM into bankruptcy. JWM and Domino's settled. McDonald sued Domino's under Section 1981 claiming financial and emotional loss. He claimed that the downfall of JWM was caused by racial discrimination on the part of Domino's. The allegation have not been proved. The trial court granted summary judgment for the Domino's.

The 9th Circuit reversed, saying that McDonald, even though he personally had no contractual relationship with Domino's, had standing to sue Domino's for alleged injuries that he personally suffered. The 9th Circuit's decision (07/18/2004) was not reported. See 2004 WL 1380296. The 9th Circuit relied on its earlier case Gomez v. Alexian Bros. Hosp., 698 F.2d 1019 (9th Cir 1983). The Circuits are split on this theory. See Guides Ltd v. Yarmouth Group, 295 F.3d 1065 (10th Cir 2002).

Helping your economic expert help themselves

Attorneys who retain economic experts can greatly help their case by making sure that the expert economist they use to calculate the economic damages is prepared as possible for cross examination questions from the opposing attorney. Even seasoned economists can benefit from guidance from the attorney.

The following is a wonderful excerpt from the company, Expert Communications. In the brief article, they advice on how an expert can handle questions concerning advertising and 'being a hired gun'. Generally, they advise the expert to be 'cool' and not take the questions personally.

EXCERPT:


Cross-Examination Questions (and Answers) about
Your Advertising


Some experts are understandably wary of advertising. I see some
forensic advertising that I consider objectionable, advertising that a
skilled attorney could use to impeach an expert witness. On the other
hand, the mere fact that one advertises is not objectionable.
Advertising, in and of itself, is not the basis of being viewed as a
"hired gun." That results, instead, from the prostituting of oneself by
manipulating the facts and opinions to provide a desired conclusion.
If you are concerned about how you will look when answering questions
about marketing your expert services, remember that the attorney
grilling you is probably listed in local, state, and national bar
association publications; Martindale-Hubbell attorney directory; local,
state, and national legal magazines and newspapers; the Yellow Pages;
and his child’s athletic booster directory. As was the judge when he
practiced law as an attorney!

Do *not* take the questioning personally. Your responses to the
questions, rather than the questions themselves, will determine the
attitude of jurors and even judges toward you. Practice maintaining
your poise and responses to emotion-loaded questions.

Successful experts say they let questions about their advertising
"bother them all the way to the bank." They have found that questions
regarding advertising comprise only one of many issues on the
cross-examination list and are not a problem when answered simply and
truthfully.

- Answer questions honestly, and do not elaborate, except to further
defuse the question.

- As with all deposition and courtroom questions, respond only to
questions, not to statements; be comfortable with the silence and wait
for a question.

- Don’t answer compound questions, or at least divide your response,
with one answer to the first part of the question and a clearly separate
answer to the second part.

- Don’t give credence to a line of questioning by trying to justify what
doesn’t need to be justified. Your restraint will make the attorney
look foolish to the jury.

Here are a few examples of questions you might encounter and suggestions
of possible answers (not a consecutive line of questioning):

Q: Do you advertise your expert witness services?
A: Yes, I do.

Q: Doesn’t that mean that you’re a hired gun?
A: No. (Don’t elaborate; make them explain, by your silence, what they
mean by a hired gun. This you can then defuse. If the attorney
continues that line of questioning, you can define "hired gun" for him
as 'one who is willing to mold his opinion according to request,' which
is not what you do).

Q: You’re available to testify for pay, and are willing to say whatever
the attorney asks you to say; isn’t that correct? (compound question)
A: I am paid for my time and expertise in reviewing the case and to
testify, if necessary, in deposition or court. What I say is my own
opinion based on the facts of the case.

Q: I have a list of directories in which you advertise your services as
an expert witness. You are hiring yourself out to testify for various
attorneys, correct?
A: I list my services in directories so that attorneys know I am
available for record review and testimony.

Q: You "promote" your expert witness services, isn’t that correct?
A: My resume and contact information are listed so that attorneys know
I am available.

Q: Retaining counsel found you on one of these "directories," isn’t
that correct?
A: I don’t know.

Q: Your opinion is for sale, isn’t that so?
A: No, I base my opinion on the facts of the case and am paid for my
time in reviewing the case and testifying about that opinion.

Moral of the story: Know the plaintiff's business BEFORE you calculate the damages

3d Circuit Upholds Exclusion of Damages Testimony in Franchise Dispute (From Dauberontheweb.com)

By dsteward
URL: 3d Circuit Upholds Exclusion of Damages Testimony in Franchise Dispute

In this case, the court disliked the plaintiff's case and their economic damage evidence.

One major criticism of the plaintiff's expert was that the expert failed to adequately familiarize himself with the company.

The court wrote:

In calculating damages, the district court rejected as speculative the report of Plaintiffs’ expert and observed in passing that the report was inadequate under thestandard prescribed in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (U.S.1993).

Because Plaintiffs’ damages theory depends upon what would have happened if the Modis transaction had been consummated, their expert faced the task of addressing how Modis’s involvement would have affected Titan’s financial performance. Plaintiffs’ expert, however, had no pre-existing knowledge of Modis and failed to familiarize himself with the company.