Cross-Examining Economists in Personal Injury Cases: Defense Strategies for Exposing a Weak Damages Case

In a wrongful death or personal injury case, both sides can offer economic experts to substantiate the financial consequences of an injury. However, defendants frequently still choose not to offer economic experts at trial. Instead, they rely on cross-examination of the plaintiff's economist to glean concessions with which to argue that no or little confidence can or should be placed in the plaintiff's expert's opinion. Defense counsel need a quiver of strategies and techniques to lift the curtain on what they would like to argue is a flimsy damages case. 

Economic expert testimony lends itself to a wide range of potential lines of cross-examination: expert credentials and "purchased testimony," speculative and unrealistic assumptions, overreliance on "averages" while ignoring the facts of the case or the plaintiff's actual habits and prospects, fantastical financial predictions, making the straightforward confusing, etc. The overriding goal of cross-examination is to leave the jury with the unshakable conviction that the plaintiff's economic expert has manipulated financial reality to inflate damages.  

This can be a daunting task when the plaintiff's expert has done a thorough job and is well prepared. Further, counsel must find a way to keep the jury and court engaged because damages experts often testify late in the case after the record is as complete as possible. 

Listen as this renowned panel of trial attorneys offers valuable and practical insights for strategic and surgical cross-examination of the plaintiff's damages expert. 

I. Whether and when to object to admissibility under Daubert or FRE 702

II. Educating the jury on key economic concepts 

III. Key topics for cross-examination

A. Qualifications

B. Credibility/integrity

C. Methodology 

D. Assumptions

1. True wages and fringe benefits

2. Actual work-life expectancy

3. Household service and actual consumption

4. Medical or institutional inflation rates

5. Taxes

6. Investment experience of expert 

7. Comparing prior projections in prior cases with actual results

8. Use of fictional or model individuals vs. actual plaintiff

9. Discount rates

IV. When to forego cross-examination

V. Tips for keeping the jury or judge engaged

The panel will review these and other important issues:

• Does the jury get to determine things like the discount rate?
• What topics are not productive to go into on cross-examination?
• When should defense counsel not engage in cross-examination?
• What is the logic of not having a defense expert on damages?