CROSS EXAMINATION OF A DEFENSE ANNUITY EXPERT

I don’t know how often you are faced with a defense annuity expert in your serious injury cases. For a long time it was common for the defense to call not only an economist, but an annuity sales person to tell the jury how a life time annuity could be purchased that would generate a significant amount of money each month at a low rate of purchase. It was offered under the guise of “present cash value.” We would file motions to exclude the testimony, but more than a few times I had to cross examine them.

Here is a rough outline from an actual case of an examination. It would have to be revised for use in your case and I’ve not tried to adapt it as a general outline.

Annuity Cross Examination Outline  

q1.       you are a hired expert for the defense aren’t you?

1.         you are involved in this case only because you were hired by the defense attorneys?

2.         you don’t know the (plaintiff ) family?

3.         you have never talked with (client)

4.         you’ve never seen (client) before this trial started?

5.         what are you being paid in this case?

(1)        total charges?

q2.       don’t you have a bias in favor of the defense of these cases?

1.         majority of your testimony is on behalf of the defense isn’t it?

(1)        over 90% of your work for the defense?

                        2.                     isn’t the reason you are hired so often for the defense is because you always offer the opinion that the economic loss is small?

(1)        well in this case your figure is $_____________whereas mr bassett’s is $___________?

3.         aren’t you hired by the defense in these cases because you are willing to offer opinions about annuities in order to save the defense money?

(1)        well you are suggesting an annuity here?

4.         don’t you earn well over half your income from testifying in cases like this?

5.         aren’t you hired a lot to be an expert in these cases?

(1)        you’ve testified in court over 60 times haven’t you?

(2)        you give a deposition in these cases at least a couple of times a month don’t you?

q3.isn’t testimony by your about an annuity a fraud on the jury because they can’t award an annuity if they wanted to?

1.         don’t you know that the jury won’t be asked by the court in it’s instructions to the jury to consider an award for an annuity to this woman or her family?

(1)        see jury verdict form poster – show it to him

(2)        don’t you know that the jury verdict form will not provide any blank for the jury to specify how an award ought to be invested?

2.         you know that the jury is in fact told to award a lump amount for the economic loses in this case don’t you?

3.         you also know that the jury has no say so at all about how any award should be invested for rita harper?

4.         you know that only the court in the guardianship can decide how the award should be invested don’t you?

5.         don’t you know that the jury instructions from the court will not even mention annuities?

(1)        so that even if the jury were to accept your ideas about annuities they are not given the right to specify the purchase of an annuity anyway?

6.         by the way, you have never had the job of investing funds for an injured person in a guardianship at any time in your life have you?

q4.       isn’t it true that these annuities are not really available to the guardian even if he were allowed to purchase them?

1.         you got these figures by calling an insurance company and asking for quotes for annuities didn’t you?

2.         your role in doing this was as a hired expert for the defense and not as an agent for the guardian?

3.         they gave you quotes over the phone so you could use them in court testimony in this case?

4.         you had no intention of buying these yourself and they

knew it when they gave you the quotes?

5.         so the quotes were ones the insurance company knew no one would come in an use to buy a policy – they were just for you to use in testifying for the defense in this case?

(1)        this was not a real open market transaction at all was it?

q5.       furthermore, you only got quotes for selected cost of care you picked out for rita didn’t you?

1.         the fact is you didn’t evaluate what care rita ought to have did you?

2.         you picked out a dollar figure for annual care for rita and then you went out and got phone quotes for annuities to pay the amount you already decided upon didn’t you?

q6        the quotes were based upon medical information someone gave the insurance company about Rita Harper?

1.         the life expectancy for rita makes a real difference in the cost of an annuity doesn’t it?

2.         the shorter she lives the cheaper the policy and the longer she lives the more it costs?

(1)        did you decide her life expectancy that was used in getting the phone quotes?

(2)        are you a medical doctor?

(3)        why did you select the life expectancy you used in getting the phone quotes?

3.         if the guardian really wanted to buy an annuity the insurance company would require what medical reports and medical records about rita they wanted to review before giving a quote?

(1)        the insurance company would study those records and decide her life expectancy wouldn’t they?

(2)        based upon their conclusions as to how long she would leave they would determine the cost of buying the annuity wouldn’t they?

7.         the medical information that is selected to be given to the insurance company directly affects the quotes they given for polices doesn’t it?

(1)        did you decide what medical information they ought to get?

(2)        who did?

(3)        what was given to them?

q7.       so aren’t annuity quotes in reality a deception on this jury?

(1)        aren’t you here just trying to save money for the defendants in offering this kind of testimony?

q8.       once invested these payments are locked in no matter what Rita may need in the future and no matter what happens to inflation?

.           these payments are fixed once you buy the policy aren’t they?

q9.       these payments depend upon the insurance company being solvent over this period of years doesn’t it?

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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