ASSOCIATION FEE AGREEMENTS BETWEEN LAWYERS

ASSOCIATION FEE AGREEMENTS BETWEEN LAWYERS

Luvera’s Practice Pointers

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        BASIC OUTLINE FOR DIRECT EXAMINATION OF A PLAINTIFF EXONOMIC EXPERT IN A PERSONAL INJURY CASE  

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           Paul Luvera

I’m not an economist and we all know economists were created to make weather forecasters look good.Robert Murdoch

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In cases with significant economic loss, we may decide that we need an expert in economics to project the future economic loss for the jury. It is not error to refuse to instruct the jury to discount future medical expenses and lost earning capacity to present cash value if no evidence is introduced as to the proper interest rate or mathematical formula. However, there are cases where present cash value and expert testimony is called for.

When presenting the testimony, we should consider making clear some specific legal facts. One important fact is that the testimony and opinions of the expert only deal with economic loss and not general damages for non-economic loss. The jury should understand this testimony only deals with out-of-pocket loss such as lost future income, cost of care or treatment, economic costs, the loss of enjoyment of life, disability or pain and suffering. The jury should be aware that the figure is large because the law requires the total future loss to be awarded at one time since there can be no annual review and assessment. In addition, the calculation is made on the basis that at the end of the injured person’s projected life expectancy all of the total money is projected to be exhausted. The calculation assumes a zero balance at death. Lastly, it is usually appropriate to examine the defense economic expert’s conflicting opinions and address them with your expert.

What follows is a very basic outline that should be revised to fit the facts of your case as well as to ensure it complies with the law applicable to your case. Using an outline will ensure you do cover what should be covered. It will also assist in witness preparation.

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    DIRECT OF ECONOMIST                            

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WHY THIS PERSON IS A WITNESS

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1.You are being called as an expert witness in economics?
2.Are you prepared to give us your economic appraisal regarding John Doe?

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IF FOR PERPETUATION

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1.You are not going to be available at the time of trial? Why?

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QUALIFICATIONS

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1.Marital & general background
2.See CV:
(1)Employment now & history – explain nature
(2)Educational background
(3)Professional societies
(4)Have you qualified as an expert witness before – explain

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HOW YOU ARRIVED AT YOUR CONCLUSIONS

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1.You understand your conclusions must be based upon “reasonable probability”
2.Will base all opinions on reasonable probability & if unable say so?

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EARNING LOSS REPORT

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1.Have you written reports with your conclusions and information about them?
2.What life expectancy did you consider for the plaintiff? Why?
3.How many years did you assume John would have worked if he had not been injured? Why?
4.Did you calculate plaintiffs earning loss as a result of his injuries?
5.Do you have your report about that loss?
6.Does this report outline your conclusions and the information about his lost earnings?
7.Is an accurate report? (Mark & Offer as exhibit)

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FACTORS CONSIDERED

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1.Explain how you arrived at that economic appraisal?

[Process: inflation, interest, fringe benefits etc.]

2.If you have illustrations that will help, explain please use them.

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PRESENT CASH VALUE

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1.What is meant by present cash value? (WPI 34.02)

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“Present cash value” means the sum of money needed now which, if

Invested at a reasonable rate of return, would equal the amount of

Loss at the time in the future when the earnings would have been

Received or [the benefits would have been received.

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The rate of interest to be applied in determining present cash value

Should be that rate which in your judgment is reasonable under all

The circumstances. In this regard, you should take into consideration

The prevailing rates of interest in the area that can reasonably be

Expected from safe investments that a person of ordinary prudence,

But without particular financial experience or skill, can make in this

Locality. In determining present cash value, you may also consider

decreases in value of money that may be caused by future inflation.”

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2.Why should we consider present cash value? Why?
3.We can’t come back each year to report economic status, so money required has to be determined now for the rest of his life, right?
4.The calculation is made to cover expenses for life and at end of life zero left?

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COST OF CARE REPORT

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1.Did you calculate future cost of care for plaintiff?
2.Do you have your report about that loss?   (Mark as exhibit)
3.Does this report outline your conclusions and the information about his lost earnings?
4.Is an accurate report? (Offer as exhibit)
5.Explain you arrived at that economic appraisal?
6.Factors you considered.

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DEFENSE ECONOMIST

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1.Do your conclusions differ from the economist hired by the lawyers for defendant?
2.What are the total amounts that differ?
3.Did you read his criticism of your calculations? Explain
4.What are the total amounts for future care that differ?
5.Why do they differ?
6.Did you read his report regarding his criticism of your calculations? Response?

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CONCLUSION

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1.Did you consider the fact that there are two kinds of damages involved: (1) economic and (2) non-economic?
2.In making your calculations were you aware that non-economic damages are the bills and costs for such things as lost earnings, care and treatment or out of pocket expenses?

In making your calculations where your aware non-economic damages would be such things as pain, disability, loss of enjoyment of life. Do your figures include anything other than economic loss?

3.Do your calculations include anything for non-economic damages such as pain disability, loss of enjoyment of life?
4.Using your calculations how much money for economic damages will be left at the end of his life expectancy period?
5.Assuming you had been asked by the defendant to make these calculations would your conclusions been different than what you have told the jury under oath here?
6.How confident are you that your conclusions are accurate and reasonable?

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Conclusion

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The use of an economic expert can enhance the success of the appropriate case. It is important to make the testimony as clear and understandable as possible. The use of helpful exhibits can improve juror interest and understanding of economic testimony. Careful selection of charts and exhibits other than the standard ones used by economists can be beneficial. Presenting economic loss through expert testimony in an understandable manner is the goal.

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