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. He will look for questionable assumptions, techniques and for outright mistakes. He will aid the defense in preparing for discovery depositions, settlement discussions, and cross-examination.

Of course, absent an economist, the defense attorney is nevertheless pursuing weaknesses in the economic projection(s) of the other side. This preparation process is a major consideration for the defense as trial and/or serious settlement negotiations approach.

Another issue is whether and how to depose the plaintiff’s economist.

In a case with damages which are potentially significant, this is usually a good idea when the thrust is to purely explore what will be said at trial. The defense economist, if one has been retained, will want more background than is normally exposed in an economic report.

On the other hand, discovery depositions may tip your hand; these pros and cons will be further discussed.

Finally, assuming that an economist has been retained by the defense, this economic expert may be asked to perform an independent economic estimate.

For example, such an analysis may be a great help in dealing with the client insurance company to establish both an initial and a final position on a settlement offer. It may be a basis for testimony — especially when the “bottom line” loss estimate is significantly below that of the plaintiff’s economist.

A danger of asking the defense economist to make a projection is that he may be forced to testify to this projection. Even if the defense does not plan to use him in testimony, he can potentially be subpoenaed by the plaintiff.

His estimate may become a concrete “bottom line.”


For More Information…

Read additional sections from Chapter 10 of The Practice Book for Plaintiff and Defense Attorneys:


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