“I’m not an economist and we all know economists were created to make weather forecasters look good.” Robert Murdoch
In cases with significant economic loss, we 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 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.
WHY THIS PERSON IS A WITNESS
HOW YOU ARRIVED AT YOUR CONCLUSIONS
EARNING LOSS REPORT
[Process: inflation, interest, fringe benefits etc.]
PRESENT CASH VALUE
“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.
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.”
COST OF CARE REPORT
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?
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.