The Intrinsic Value of Economic Testimony in a Employment Discrimination Lawsuit

Using a jury's verdict to determine the value of expert economic testimony

Often times it is difficult for an attorney to determine what value hiring an expert adds to their case. One way to value expert testimony is to consider the award that the jury determines in relationship to the expert's damage estimate. A recent employment case in San Antonio, Texas is particularly insightful.

In this employment discrimination case, the plaintiff hired an indiviudal to calculate back and front pay losses. The plaintiff, who began working at the employer in 1979, was terminated in 2005 for opening a confidential document on her computer, while a male employee, who also opened a confidential document a short time later, was not fired or disciplined. The defense hired a rebutal economic expert.

The plaintiff's economic expert opined that the plaintiff had suffered about $950,000 in back and front pay losses. In contrast the defense hired an economist who opined that the plaintiff had lost, at most, $28,000. The defense expert opined that with the plaintiff's background, which was in computers, he was more than capable of obtaining a job that paid as much or more as he earned at the defenfant/employer.

The jury agreed that the plaintiff was the victim of discrimination and awarded, economic damages, mental anguish, and attorneys fees. The award for economic damages is quite insightful in this case.

The jury awarded the plaintiff $330,888 in front and back pay losses. The award was clearly less than the plaintiff's economic expert but more than the defense expert's analysis. One way to look at the value of the economist testimony is to look at what the award would have been had there been had their not been an opposing economist hired by the defense. Conceptually, the jury's award suggest that the value of the defendant's testimony was approximately $619,112.

That is the $950,000 opinion of the plaintiff economist minus the $330,888 award from the jury. The idea is that the jury would have awarded the plaintiff for the full amount of the award had the defense attorney not testified.

How far do economic damages go on in employment termination cases?

Economic damages in employment discrimination cases are different from damages in personal injury cases. In a nutshell, the economic damage calculation in employment termination cases needs to take into account that the terminated plaintiff may, and in all likelihood will, obtain alternative employment.

With re-employment income in mind, there are two components that are unique to employment termination cases. One component is the expected amount of time that the plaintiff would have been expected to work at the defendant had they not been wrongly terminated. The other component is the amount of time that it takes before the terminated individual is able to earn wages at their replacement employment that exceed the amount that they would have been expected to earn had they not been terminated.

These two factors generally determine how far economic damages will go into the future. Here are a couple of studies that have looked at these issues.

Duration of Employment, Robert Trout, http://nafe.net/JFE/j16_2_05.pdf and http://nafe.net/JFE/j08_2_06.pdf

Do Terminated Employees Catch Up? Evidence from the Displaced Workers Survey, David Macpherson and Michael Piette, Journal of Forensic Economics 16 (2), 2003, pp. 185-199.

Best employment interrogatory questions

Economic damages in employment termination cases

Getting information on the jobs that the individual worked at and applied for after the defendant terminated them; helps the labor economist work up the damages and determine what types of jobs may have been available to the plaintiff. In addition, the information is used to assess the plaintiffs attempts to pursue available job opportunities i.e. mitigate their damages.

Here are some questions that are helpful in getting that information

INTERROGATORY NO.1

Identify each employer for whom you worked with since last employed by the defendant

INTERROGATORY NO.2

If you are no longer employer by an employer identified in response to interrogatory no.1, state when the employment ended and why

INTERROGATORY No.3

State the job duties, wages and responsibilities that you had at each employer identified in Interrogatory No.1

INTERROGATORY No. 4

Describe and state how much earned from any self-employment since leaving the defendant

INTERROGATORY No.5

Identify anyone with whom you have sought employment since you were last employed by the defendant

INTERROGATORY No.6

State whether you rejected or declined in accepting any offer of employment since last employed with the defendant.

Once the information is received, we should check (at deposition or by interview):

* If the list of jobs that the plaintiff provided includes all the jobs or is it just a representative job list? This is important because now the list can be used to determine how many jobs the person applied for and if the number of jobs searched for are consistent with the number of jobs a typical person will apply for when they are looking for a job)

* For any jobs that were turned down make sure that the plaintiff has listed that reason and the wage that would have been received by the person

* List and make sure that no other jobs have been received since the interrogatory answers

* Get the plaintiff to list out all programs, training, and capabilities that they possess. For example, if the plaintiff is a computer support person, get the full list of Microsoft certifications, list of software that the person can support (for example the windows products line), details on the networking capabilities they have (for example can they set networks up (if so, what type LINUX, Novell, etc.) or do they focus on making sure the computers talk to the network) also make sure that questions are ask to see what level or types of classes the person is currently pursuing.