Hot tubbing Expert Witnesses

In a recent New York Times article ADAM LIPTAK's article discussed the potential problems associated with having experts that are hired by the individual parties. One interesting possibility to deal with the dueling experts is call 'hot tubbing experts'. While not nearing as fun as it sounds, in the process, (also called concurrent evidence), experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues. The process has been used in Australia

Daubert Watch 5.39.3008: Economist passes the muster

In Mcdaniel vs. Gallery Model Homes, Inc. age discrimination case, in the Southern District of Texas, JOHN D. RAINEY, UNITED STATES DISTRICT JUDGE ruled that the defendant's concerns went to the weight NOT the admissibility of the economist's testimony.

The motion by the defense attorney is particular interesting. It is clear that there was a lot of bad blood betwen these two parties.

In the motion the defense complained of :

- The economic damage report (on back and front pay) not meeting rule 26(b) standards. (According to the motion the plaintiff's economist did not provide all the required documents )

- Plaintiff economist not having enough data to perform and adequate analysis

- The unknown rate of error of his worklife estimates

- Use of benefits multiplier and the fact that the ezpert did not know the exact benefits that the defendant provided

- Growth rate did not match the plaintiffs job. Economist used aggregate data not specific to sales

- Health of the plaintiffs. The plaintiffs had knee surgery that may have prevented them from performing some types of work. The economist did not include this in his analysis.


(see: dauberttracker.com for details)

Defense's Motion to Exclude : 58-1.pdf

How an economic expert deposition should go...

In this economic expert deposition, the defendants are deposing a very seasoned economist in an age discrimination case. Overall the economist, Dr. Ken McCoin does a superb job at the deposition. Dr. McCoin is candid and open in his responses. When there are obvious things in which the economist should 'give in' on he does...

Part 1 Part 2

The depo is a good read for attorneys looking for good questions on economic damages calculations involving back and front pay. There are also good discussions on interest rates and other assumptions used in front pay and back pay calculations.

Side note: The defense attorney and the economist have a past professional history; they have worked together. Makes the reading very interesting.

Daubert can be a plaintiff's best friend

Daubert motions to disqualify scientific expert witnesses have become a staple in many defense attorneys' war chests, but Brian Beckcom, a Texas attorney who specializes in plaintiff maritime personal injury cases, believes that Daubert is "a gun that kicks as hard as it shoots."

See: http://www.verdictsearch.com/jv3_verdictsearch/tactics/021307/ for the full story.

Malone and Zwier on Experts

E.10 Remind the expert not to be an overt advocate (p.45)

You want the jury to believe that your expert has been objective and relatively independent....

excerpted from National Institute for Trial Advocacy publication (www.nita.org), Expert Rules, 100 (and more) Points You Need to Know about Expert Witnesses, Second Edition by David Malone and Paul Zwier

An attorneys take on explaining economic damages to a jury

Often economic expert witness testimony gets bogged down in the actual calculation of a plaintiff's economic damages and fails to relay to the jury WHY economic damages should (or should not) be awarded in the first place.

South Carolina attorney David Swanner, at his blog South Carolina Trial Law Blog, talks about how he explains the WHY economic damages factor to a jury.