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Crossing examining experts and introducing evidence

Interesting discussion @ The Illinois Trial Practice Weblog, of how attorneys can and can not use heresay evidence at trial.

This is particularly relevant for economic experts. It is common in wrongful death cases for example, for the defense counsel to introduce damaging information about the plaintiff's past lifestyle, such as drug use, that may have not been allowed in otherwise, thru the use of economic experts at trial. The article can be found at: http://www.illinoistrialpractice.com/2005/08/crossexamining_.html

Is the plaintiff's fringe benefits package being undervalued?

A post on Jottings by An Employer's Lawyer, suggest that they may in fact maybe. Jottings by An Employer's Lawyer is an interesting blawg that run by an employment defense attorney in Texas.

The Small Business Adminstration's survey on cost is particularly interesting because it provides a check and alternative to the U.S. Bureau of Labor Statistics (BLS) estimate of the value of an employer's fringe benefit package. Interesting, in a number of instances it looks like the SBA survey suggest that cost of providing benefits is HIGHER than suggested by the BLS.

He said:

Released this month is a study funded by the Small Business Administration, Office of Advocacy. The purpose:
This study examines the cost of the benefits that employers provide to their workers and how these costs vary with company size. It focuses on benefits that employers voluntarily provide: health insurance, private pension plans, paid vacation, and sick leave. If you want to check out how your benefit costs stack up, check out Cost of Employee Benefits in Small and Large Businesses [pdf].

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.

Can a injured plaintiff who is back to work in the same job ask for damages for loss of future earning capacity?

The answer is yes according to Fellow blawger, John Day of http://www.dayontorts.com/.

As reported in Loss of Future Earning Capacity, the Eighth Circuit Court of Appeals rules that, given the fact that there was evidence of ongoing physical problems and testimony by the plaintiff that he would probably not be working for as many years given his aliments, the plaintiff could ask for damages even though he continued to work at the same job.

Nonprofessional experts rank high on jury credibility

According to the August 2005 ABA Journal (link to ABA site and article), nonprofessionals rank high on jury credibility AND cost the lawyers less. According to the article:

"One reason they are becoming so popular, lawyers say, is economics. Nonprofessionals typically charge a fraction of what professionals command. And some professional experts have doubled or even tripled their fees in recent years. Nonprofessional rates, meanwhile, have remained relatively stable.
But, expenses aside, these lawyers say people who actually work in a particular field tend to have more credibility and a better rapport with juries than many professional experts."

Nova Southeastern University law professor Carol Henderson, says,

"Going this route makes economic sense, especially in contingent fee cases when a lawyer is advancing costs or for firms that lack substantial war chests."

Furthmore:

She supports the notion that jurors find nonprofessionals more credible. “Some professional experts may come across as too glib or too polished,” says Henderson, the director of the National Clearinghouse for Science, Technology and the Law at Stetson University College of Law.