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. In Washington, 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. In those cases, our expert is usually met with a defense economic expert. What follows is a very basic outline of some ideas for cross examination of such an expert.
Remember, when presenting economic testimony, we should make clear some specific legal facts. One important fact is that the testimony and opinions of the experts 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 and economic costs, not 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.
DEFENSE ECONOMIC EXPERT CROSS EXAM GENERAL OUTLINE
1.Since the jury should evaluate your testimony regarding “any personal interest you might have in the outcome or the issues as well as any bias or prejudice you might have” (WPI 2.10), I’d like to cover some facts about you.
2.Your involved in this case because you were hired by the defense?
3.You never knew (plaintiff)?
4.You have never met (plaintiff)?
5.You’ve never talked to (plaintiff) or any family member?
6.Only involved because defendants hired you to testify for them.
7.You know jury has the job of evaluating your testimony to determine “credibility and weight to be given to your opinions? (WPI 2.10)
8.And you know the jury is the sole judge of your credibility and the value or weight to be given to your testimony (WPI 1.02)
9.The overwhelming amount of opinion testimony you offer on personal injury or death cases is for the defense?
10.The great majority of your opinions in injury and death cases favors the defense side of the case,
1.Charge per hour for deposition testimony?
2.Charge per hour for trial testimony?
FIGURES DO NOT INCLUDE NON-ECONOMIC DAMAGES
1.Let’s make it clear that you are here offering personal opinions only about economic losses – lost earnings, cost of care and treatment out of pocket expenses?
2.That’s called “economic” damages?
3.You are not offering any opinion about the important loss of non-economic damages like the loss of enjoyment of life, disability or pain and suffering?
4.Those are a separate loss the jury is to the consider and you are not testifying about that subject?
5.Nor are you offering any opinion about damages to the surviving spouse for Loss of “emotional support, love, affection, companionship and services including emotional and sexual support.?
6.And you are not offering any opinion about damages to the surviving child for loss of love, companionship and parental guidance either?
7.It would be wrong for the jury to apply your opinions to those non-economic losses.
8.There is no reduction for noneconomic losses from the death of a husband and father?
1.These are merely your personal opinions
2.They differ from the opinions of (plaintiff expert)?
3.Your opinions are based upon assumptions you decided to make about the economic loss?
4.To the extent your assumptions are wrong, your opinion is also wrong?
COMPARISON TO PLAINTIFF ECONOMIST
Discuss plaintiff’s economist qualifications and ability
Outline comparison of differences in numbers – numbers side by side – identify reason for differences e.g., interest rate, personal consumption etc.
Question his numbers vs plaintiff
Have witness use different figures and then our economist numbers for things like interest rates, personal consumption etc. and calculate the loss to show how it impacts the total
Have him/her indicate what happens if his projections on inflation and interest rates are what our economist says.
Cover These points
1.Reason your figures are different then (plaintiff expert) is because you chose figures which result in the total being a lot less then his/hers?
2.These differences have a big impact on the total amount of the projected loss.
3.If you use different figures, you get different totals for the loss.
4.Your personal opinion about the difference between future interest rates and future inflation result in a lot less low loss of future wages then that of (plaintiff expert)?
5.But you chose to use these other figures in your calculations resulting in a lower future loss for this injured person?
NOT HIS PROBLEM
6.You knew that whatever your opinions he wasn’t your personal responsibility
7.Right or wrong – no matter what the future actually holds for him – you won’t have to deal with the situation
8.When are through here and walk out the door, you will have no further connection with him or his family or his future problems?
9.But you do know whatever the appraisal of the jury as to hi future loss he will never be able to come back for more financial help. This is his only day in court.
This is obviously a basic draft of ideas that need to be revised to fit your case and the law of your jurisdiction. It is intended as a guide to get you thinking about the best way to cross examine a defense expert economist. Add to it and revise it for your style and your case.