Follow up to 2.16.2006 Dispatches from the court room)

As a follow-up to yesterdays (2.16.2005) post --- (concerning the employment-injury-whistle blower case testimony)

One question that epitomizes the importance of being cool under fire was as follows:

At the beginning of the opposing attorneys cross examination, during the beginning of his personal attack phase, he asked me a series of questions one of which was did I know the date that the plaintiff was terminated.

At the time, I could not recall the date. So he followed up with.

Q: You are going to tell me you came to Federal Court and have not refreshed the details of this case?

As the economist discussed in the post yesterday, this was round one and instead of realizing the opportunity for a counter punch was available, he played the attorneys game and answered:

A: No I believe it was sometime in February of 2002.

The answer was correct but not a good one. In fact it was February 14, 2002 but the official date for the company was March 1, 2002. While of course, none of this is really important. The correct dates were used in the reports.

However, what was important was the way the question was answered by our economist. The imprecision in the answer, like it our not, makes the economist look like he was not completely on top of the case.

Instead, as mentioned yesterday, had the economist remained completely COOL the open ended nature of the question would have actually allowed he to provide a strong reply that could have actually helped add to the credibility of his research.

For instance, a better answer (and one that can more or less be used in any situation where the opposing attorney is hammering an expert on some unimportant detail) would have been something as follows

A: No, sir that is completely untrue. I have prepared intensely for my trial testimony concerning my expert analysis today. I have thoroughly reviewed all the case documents, legal documents, my depositions, and my expert reports in this case. I have also reconstructed and checked the spreadsheets and other financial calculations that are included in my expert report.

The information such as the date of the plaintiff’s employment termination is contained in those files and the expert reports that I have filed in this case.

The open ended nature of the cross examination question, had he remained cool, would have allowed for a wonderful come-back. The key point is that when testifying you have to be cool to be able to see when the opportunity (and it always will) to response in kind presents itself.

Dispatches from the courtroom - 2.10.2006

One lostcompensation.com economist’s experience in the courtroom. As usual the facts and the type of case have been changed to protect both the innocent and the guilty. The lessons learned how ever remain unchanged. In this case our lost compensation economist was working on behalf of the defendants in an employment-injury-whistle blower case.

Testimony today: After a days delay, it was finally ‘go time’ today. On the previous day the judge only held court for a half day so he pushed the planned two day bench trial into a third day. The case involved a dispute involved an employment and injury claims that resulted in lost back wages, lost front wages, and lost pension benefits. Initially the plaintiffs in the case started with a claim for about $2 million in damages after much back and forth and dueling economic reports, at the time of trial the plaintiff’s economic expert report on the alleged loss wages was about $800k. Our economic damage estimates were about $500k in the case and actually decreased at the time of trial when the plaintiff’s economic expert’s assumptions were included in the analysis.

In my mind today’s testimony on economic damages was very much like a 8round prize fight (or a tennis match for readers who are not fans of the sweet science). While there was not anything particularly different in this employment-injury case, the opposing attorney was quite aggressive, and at times a little too over zealous, which led to a constant back and forth during the cross examination.

Round 1: The direct examination.
The direct examination went incredibly smooth. The back-up documents prepared by the lost compensation staff was incredibly detailed and without error. This allowed me before the trial to just focus on the issues in the case and the potential questions that could be ask of me.

The attorney who retained me was incredibly smooth, well prepared and ask very good and pointed questions concerning the economic damage report. At every point it was very clear what she was asking and used the correct terminology. Her style was a little different from other attorneys that in that she basically asks the exact same questions that she asked at the deposition. [FYI, in the area of the country where the economist works it is rare for the retaining attorney to ask any questions at the deposition. Instead, the attorney nearly always ‘reserves their questions until the time of trial’]

At the end of the day, the end result was a very smooth direct examination. She was a very ethical and professional attorney.

Round 2: The first volley of cross examination questions.
The first questions are always the hardest one for me when I testify on damages in an injury, employment or wrongful death case. It is the hardest because it is simply impossibly to determine where they are going to go. Did they find some error that somehow we missed? Are they going to attack a particular assumption in the model, if so which one? Like the first round in a prize fight, no matter what you do you will get hit.

I think Mike Tyson said it best, ‘Everyone has a plan until you get hit in the mouth’

This round 2 was no different. The attorney started off by going to his briefcase and pulling out a calculator (oh boy…here goes…) and saying ‘I think I found an error in your calculation’. After questioning my degree of preparation, he then proceeded to do some calculations and pronounces himself correct – yes indeed in his mind he had found a mistake.

Round 3: The mistake was not a mistake but a difference on a start dates for a particular valuation of mitigating pension income.
In his calculation, he started the interest calculation at a later date, and his ‘analysis’ suggested a lower amount of mitigation pension income than should be deducted from his client’s economic damages claims. While I in no way agreed with his off the cuff calculations, I stated that if the date needed to be changed the valuation would result in a small (if any) change in the bottom line lost pension valuation.

He presented a similar argument concerning the retirement date that I used in the valuation of the pension. According to him the retirement age I used, which was based on a company document, was the wrong one. He reportedly found another set of retirement ages in the same document that suggested that the retirement age I used was incorrect and unfairly punished his client. I disagreed and told him I would have to review his new numbers before I could develop a more detailed opinion on his new numbers.

In my mind these were not the best answers, and were definitely not counter punches, but overall felt like a good block of his criticisms. Most importantly I could get an idea of where he was going with his questions. In hindsight, the retirement number calculation offered a perfect opportunity to counteract, but at the time I was not able to respond in the way that would have ‘scored any points’. I also lost my cool at a couple of points and I think this contributed to my inability to see the opportunity in front of me. (See Mike Tyson’s quote above)

Round 4: He gets into the assumptions.
At this stage of the trial he starts to use a series of hypothetical scenarios to try and find contradictions in my testimony. His hypothetical scenarios were good and imaginative. For example, at one point he carefully walked thru my analysis of the plaintiff’s life expectancy. Using the description of the data that I actually used in my analysis and his quite clever hypothetical scenarios he implied that my approach is potentially unfair and under compensates his client because it has the potential to over-account for his expected mortality.

Round 5: Counter punch.
While his hypothetical scenarios were clever, for what ever reason he tended to have an ‘open door’ policy concerning the answer. In essence, he would leave his question open ended and that allowed each of his hypothetical scenarios to be turned around. Unlike some attorneys he did not ask pointed questions that made you say yes or no. Most times, since using his open door policy, instead of appearing to be non-responsive and evasive, I got to reiterate the soundness of my assumptions over and over with.

Round 6: Personal attacks.
He asked if I worked for both plaintiffs and defendants. I said yes. He accuses me of using two sets of rules one for plaintiffs and one for defendants in economic damage analyses. While although completely untrue, the accusation was ok with me (‘sticks and stones’) however he continued and basically attacked my objectivity outside the scope of the case and me personally. The judge strongly admonished him and he subsequently apologized. Thru it all, even though hard at times, I kept referring to him as sir and answering questions as respectively (no sir/yes sir) as possible.

Round 7: Opposing attorney provides his own ‘unbiased’ testimony to the court.
At one point on a particularly and technical pension valuation point, the opposing attorney offers a new exhibit that according to him was based on my earlier expert report in the case.

According to him his analysis was based on my expert report, it was just a little more detailed, and looked at the same issue under a different set of assumptions he said. His assumptions of course were favorable to his client and therefore contradicted my earlier analysis. The attorney himself, and not his economic expert, prepared the document (this is going to be fun…).

The problem at this point was not with his choice of assumptions, but with his entire analysis. Unlike anything I have every experienced in my testimony experience he basically asked me to agree that his analysis was correct and in light of his analysis mine was wrong. Needless to say, this part was actually quite fun and made me forget about the initial pain from the earlier rounds

Of course, I did not agree with him in anyway. Thru his open door questioning policy, I was able to say things like his analysis was ‘nonsensical’, ‘did not use the right assumptions’ and ‘did not make sense’. Most importantly, I was able to re-emphasize the importance of my analysis.

Round 8: Re-direct there was little to none from our side.
I was the last witness so the trial is now over. Nothing left to do but wait to see what the judge says and who he believes.

Lessons learned

1. Stay cool. In the first part of the trial, I kind of violated this rule. I let him get under my skin a bit with his somewhat personal attacks. I feel this really did effect my ability to see some early opportunities to turn some of the questions around in a positive way.

2. Stay professional.

3. Don’t dodge hypothetical scenarios if you can turn them around.

4. Be consistent and state your opinion over and over again at every opportunity.

5. Do not let them characterize your testimony. I even rephrase the small stuff like it is an interest rate factor and not a discount factor. I do not do it to be difficult; instead it keeps the testimony your own. Opposing attorneys usually have an ulterior motive when they phase your testimony in their terms.

For example, in this case he was trying to get me to say that really, by using all of these different factors in the economic damage analysis, what I was doing here was using a discount factor of 17% (which would be way outside acceptable ranges as laid out in previous cases such as Culver) to discount his clients losses. His assertions were completely wrong, but if not paying attention he could have slid it in.