Day: July 31, 2019

Cross-Examination of The Economic Expert

Excerpt from Chapter 11: Economic Damages at Trial  Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith Many general tactics are available in cross-examination. The defense attorney may ask no questions and ignore the expert, especially if liability is in serious doubt.
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Direct Examination of Economic Expert

Excerpt from Chapter 11: Economic Damages at Trial  Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith The overriding rule for the plaintiff’s attorney and economic expert is that economic testimony must be made as straightforward and understandable as possible.
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Voir Dire

Excerpt from Chapter 11: Economic Damages at Trial  Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith The plaintiff’s attorneys generally state that the liability side of the case will be more important than the damages side as a consideration in jury selection. This might be reversed, for example, when the liability seems to be clear and very large economic damages are to be advanced. At any rate, plaintiffs’ attorneys do consider the proof of damages as a jury is selected.
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Preparation for Trial: Plaintiff, Defense, and Testimony

Excerpt from Chapter 10: Pre-Trial Tasks and Issues Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith The forensic economist for the plaintiff will have three primary resources on the witness stand — above and beyond his brain, experience, personality, etc. These are: His specific case file. His file or notebook of back-up economic or related data. His exhibits. As trial approaches, the economist must ensure that he is prepared to effectively utilize these resources.
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Discovery Depositions

Excerpt from Chapter 10: Pre-Trial Tasks and Issues Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith If the defense attorney decides to proceed with a discovery deposition on the plaintiff’s economist, he must decide upon his primary reason for requesting the deposition.
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Structured Settlements and Settlement Negotiations

Excerpt from Chapter 10: Pre-Trial Tasks and Issues Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith Defense and plaintiffs’ attorneys seek to reach equitable resolution of their cases. Most of the time, this pursuit leads to settlement rather than trial. The majority of settlements are reached even before suit is filed, and the majority of the remaining cases are settled before trial. For both plaintiffs and defendants, there are two principal advantages to settling.
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General Considerations on the Defense Side

Excerpt from Chapter 10: Pre-Trial Tasks and Issues Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith In Chapter Two, the issue of whether an economist should be hired by the defense attorney was discussed. If a defense economist has been hired, his role includes a careful study of the economic analysis on the plaintiff economist and of past evaluations by that economist.
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General Considerations on the Plaintiff’s Side

Excerpt from Chapter 10: Pre-Trial Tasks and Issues Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith The manner in which the plaintiff’s attorney uses his economist and his economic analysis may be influenced by his evaluation of the probabilities of settlement versus trial.
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How to Value a Life

What constitutes the hedonic value of life? Society has shown a willingness to pay to prevent loss of life or injury to persons unknown, regardless of their earning potential. The ability to enjoy living itself is a valuable asset.
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A Background of Hedonic Damages

Excerpt from Chapter 9: Hedonic Damages Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith Since 1937 in Rose v. Ford,7 English courts have allowed a separate recovery for the “loss of expectation of life.”
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Introduction to Hedonic Damages

Excerpt from Chapter 9: Hedonic Damages Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith Intangible damages resulting from the loss of life have resisted objective quantification in the past. Intangible damages from profound injury, and the loss of society and companionship have likewise been difficult to quantify.
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General Approaches to Estimating Fringe Benefits

Excerpt from Chapter 4: Fringe Benefits Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith General Approaches to Estimating Fringe Benefits Most commonly, the estimation of fringe benefit loss is based upon the market theory of loss.
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Why Include Fringe Benefits in Loss Estimates?

Excerpt from Chapter 4: Fringe Benefits Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith Several theoretical bases exist for including employer contributions to fringe benefits in estimates of the earning capacity, and therefore of the lost earning capacity, of individuals rendered incapable of work.
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An Introduction to Fringe Benefits

Excerpt from Chapter 4: Fringe Benefits Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith The definition of fringe benefits is a residual definition.
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Work-Life Expectancy

Excerpt from Chapter 3: The Basics of Estimating Wage or Salary Loss Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith The $856,115 loss estimate in Table 7 is still not the appropriate loss estimate in most circumstances.
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The Teeter-Totter Method

Alternative Approaches in Selecting Wage Growth Rates Versus Discount Rates Excerpt from Chapter 3: The Basics of Estimating Wage or Salary Loss Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith A key assumption in lost earning capacity estimates concerns the relationship between wage growth rates and interest (discount) rates.
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Is a Written Report Desirable?

Excerpt from Chapter 2: Issues Preliminary to a Written Analysis of Economic Loss Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith An economic expert can estimate damages without providing a formal written report. On the plaintiff's side, a thorough written report is normally requested. The plaintiff is the party with the invited burdens and desires a written report either for settlement or as the basis of testimony.
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The Costs of Using Experts on Damages

Excerpt from Chapter 2: Issues Preliminary to a Written Analysis of Economic Loss Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith Fees charged by economic experts, for both written analyses of lost earning capacity and for testimony, vary widely by region of the country and, often, by the experience level of the expert.
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Is an Expert on Economic Damages Necessary?

Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys by Michael L. Brookshire and Stan V. Smith A logical first question is whether a search for an economic expert should even be undertaken. Normally, it is the plaintiff attorney who—representing the party with the burden of producing evidence and burden of proof—first addresses this multi-dimensional question.
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Recoverability, Proof and Valuation in Personal Injury, Survival and Wrongful Death Actions in Wisconsin

At the time this article was written, Wisconsin courts had not clearly addressed the issue of separation between pain and suffering and loss of enjoyment of life damages. This was due to the fear that awards in personal injury and wrongful death cases may be duplicative, thus possibly be grossly inaccurate.
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Measuring the Loss of Enjoyment of Life in Personal Injury Cases in Washington

Courts are increasingly recognizing the distinction between experiencing the pain and suffering of the incident itself, and the subsequent suffering from a disability caused by an injury. Legal views on the issue of loss of enjoyment of life are beginning to change, in part because of an economic model that places a dollar figure on the hedonic value of life — the pleasure or satisfaction we get from living.
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Hedonic Damages in Wrongful Death Cases

Traditional measures restricted to financial damages significantly underestimate the pecuniary value of life lost in wrongful death cases. Economists distinguish between the hedonic attributes of life, which relate to the pleasure of being alive, and the monetary attributes of life.
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Hedonic Damages: Assessing the Loss of Enjoyment of Life

Expansion of economic testimony to assess hedonic damages, which formerly had been argued subjectively, stirred considerable interest. Testimony founded on a broad body of economic literature reveals to what extent we, as a contemporary American society, value life.
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Hedonic Damages: Measuring the Loss of Enjoyment of Life in Personal Injury Cases

Most people believe that the real reason we are alive is not only to work at home or in the marketplace, but also to experience the full value of the gift of life. Though, before testimony on hedonic damages was introduced in personal injury and wrongful death cases, juries struggled to determine fair and accurate monetary awards to survivors and/or their families.
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More Suing Over Lost Joy of Life

Use of an economic model to fairly and accurately measure the value of lost enjoyment of life was once a hot topic of debate between plaintiff and defense attorneys. Coined “hedonic damages” by economist Stan V. Smith, the concept stirred great debate both for and against the use of an economic model to quantify the value of a person’s life — and especially upon the loss of enjoyment of life.
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Damages for The Value of Life

More and more, courts and juries are agreeing that the value of life is not trivial. If a court finds that someone is responsible for an injury or the loss of a life, then the full value of that injury or life should be compensated. We all place a value on our lives, even if we no longer earn a living.
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The Hedonic Value of Life: Economic Expert Witness Testimony in Injury and Wrongful Death

Society agrees that people have a value separate from their earning capacity. Without economic expert witness testimony to assist in hedonic damages cases, juries struggle to determine the monetary value of life with no explicit market price. Through such testimony, awards may become more predictable, leading to more settlements, less litigation, and hence, lower insurance premiums.
Read "The Hedonic Value of Life: Economic Expert Witness Testimony in Injury and Wrongful Death"

Hedonic Damages: Evaluating the Intangible Loss of Life and Limb

Can we quantify life’s value? It is the economist’s job to reveal the implicit price society puts on life based on extensive research. Many studies show that when the income component is known, the hedonic component can be shown. The hedonic damages model is a concrete measure of the value of life, separate from lost earnings capacity.
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Hedonic Damages in Personal Injury and Wrongful Death Litigation

One of the more difficult tasks facing jurors is to place a dollar value on loss of enjoyment of life in wrongful death and nonfatal injury cases. Such losses have recently become known as hedonic damages. Absent economic testimony, ac hoc valuation methods commonly used by juries in place of accurate hedonic damages estimations rarely result in equal justice under the law.
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Spotting Bias in Plaintiffs’ Economic Loss Reports: A Primer for Both Sides

Everyone wants a fair and neutral economic assessment when determining plaintiff awards in personal injury and wrongful death cases. Bias can easily be manipulated to favor either plaintiff or the defense, and economists who use bias in several factors can waylay an entire jury unless effectively checked. Even modest biases in any one factor can lead to significant biases in the overall result.
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Life Values: Measuring the Loss of Enjoyment of Life

Much of the sentiment for tort reform on the value of life has been stimulated by the rare but newsworthy "runaway" verdicts. While damages for measuring the loss of enjoyment of life have been widely argued for decades, juries relied mainly on ad hoc methods to award plaintiff’s in injury and wrongful death cases. More recently, claims for such damages have been supported by the testimony of economists who provide objective information on the loss of enjoyment of life, or hedonic damages, resulting in more accurate awards based on the life values established by hedonic valuation.
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Hedonic Damages: Evaluating the Loss of Enjoyment of Life

Economic testimony on the value of life is becoming increasingly common. Testimony on hedonic damages can produce more consistent and rational jury verdicts. It can reduce the wide variability of awards which contributes to the current win/lose lottery effect of personal injury lawsuits. This encourages settlements rather than trials, and thereby reduces litigation and insurance costs. These are results we could all live with.
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The Value of Life to Close Family Members: Calculating the Loss of Society and Companionship

Relied upon by economists to calculate the loss of enjoyment of life damages in personal injury and wrongful death cases, value of life literature in economics serves to provide estimates for the loss of society and companionship as a result of the death of a close family member.
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Price of Pleasure: New Legal Theorists Attach A Dollar Value to The Joys of Living

Great controversy once surrounded Stanley V. Smith’s theory of hedonic damages when it was first introduced to the world of legal economics in personal injury and wrongful death lawsuits. Hedonic damages theory is used to help determine the valuation of life by providing rough guidelines for valuing lost pleasure beyond a person’s worth in relation to their job/work.
Read "Price of Pleasure: New Legal Theorists Attach A Dollar Value to The Joys of Living"

Pseudo-Economists – The New Junk Scientists

The increased use of economic experts in commercial damage cases, as well as in personal injury and wrongful death cases, has resulted in the emergence of a group of experts who offer economic services but are unqualified and ill-trained in economics.
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Economist Proposes Relief from Ruling for Plaintiff

There wasn’t always a standard formula for calculating future lost wages when a plaintiff suffered a loss of enjoyment of life or hedonic damages. Before this methodology became standard practice in injury and wrongful death trials, economists faced an uphill battle to ensure fair settlements for plaintiffs in personal injury cases.
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Hedonic Damages and Personal Injury: A Conceptual Approach

In a personal injury case, juries may be asked to consider the loss of the pleasure of life. Economists and financial experts sometimes testify in this area, but a reliable system for rating and quantifying such damages in personal injury cases has not been developed and communicated. An interdisciplinary approach for applying hedonic valuations establishes a foundational model.
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Why Juries Can Be Trusted

Can we trust a jury in today’s modern world? Despite occasional bombastic headlines, the jury system remains one of the more reliable criminal trial methods ever devised. Here, we explore why juries can be trusted, and present peer-reviewed research that supports the civil jury system.
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Measuring the Loss of Enjoyment of Life in Personal Injury Cases — Hedonic Damages

In personal injury cases, the hedonic damages economic model has been used in courts throughout the country to value the loss of society and companionship to survivors. “Hedonic value” refers to that part of life’s worth which is separate from the financial value, such as lost earnings. In these cases, the concept of hedonic value is used to measure the diminution of the value of life as a consequence of trauma, separate from the palpable pain and suffering of the trauma itself. Through economic expert testimony, awards become more predictable, leading to more settlements, less litigation, and hence lower insurance premiums. Appropriate and reasoned jury awards often result from such expert witness testimony.
Read "Measuring the Loss of Enjoyment of Life in Personal Injury Cases — Hedonic Damages"

The Value of Life to Close Family Members: Calculating the Loss of Society and Companionship

Calculating the value of life and measuring the loss of enjoyment of life in personal injury and wrongful death cases is vital to jurors. Often called hedonic damages, value of life literature in economics has developed to the point where it can provide useful guidance to jurors in assisting them in the valuation process.
Read "The Value of Life to Close Family Members: Calculating the Loss of Society and Companionship"

Bradley vs Zachary

Stan V. Smith Personal Injury Case Video Testimony: Smith testifies for a plaintiff in a personal injury case.
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Driggers vs Detroit Edison

Video: American Law Institute-American Bar Association Round table discussion.
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Annual Meeting of the American Bar Association

Video: Speech and Mock Trial. Humans aren’t just mere economic machines. In an ABA/TIPs speech, Stan emphasizes the enjoyment of life is far greater than our net earnings capacity.
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News story on railroad crossing, NBC5

Video: “Lack of Safety at Railroad Crossings”. In an investigative report, Stan reveals the railroad industry’s lack of economic incentives in preventing fatality accidents.
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“Hedonic Damages,” CLE-TV

Video: "“Hedonic Damages: Litigating the loss of enjoyment of life.” American Law Institute-American Bar Association Round table discussion: Monetary/financial losses vs. Losses in the enjoyment of life. Stan details what losses are included in hedonic damages.
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“Aircrash,” A&E

Video: "Aircrash". How does the government measure hedonic damages in a plane crash? Stan explains the imperfect system of compensating the loss of lives and crash victims’ psychological distress.
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Michigan Trial Lawyers Association Winter Seminar

Video: "Hedonic Damages and Other Special Economic Issues". Stan discusses how to turn speculative issues into tangible, economic information the jury can consider.
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Advocacy Institute, Continuing Legal Education Annual Seminar, Ann Arbor, MI

Video: "Wrongful Death of an Older Person". Stan V. Smith Lecture on the Importance of Economic Theory, bridging theory and practice. Stan’s lectures on the importance of applying economic theory into courtroom practice.
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Larry King Live, CNN

Video: “The Price of Happiness”. Stan explains the importance of hedonic damages on Larry King Live.
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