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.
The plaintiff’s attorney may ask for several “iterations,” or estimates, based upon differing assumptions, but only one iteration is sent to the defense.
A good defense question in cross-examination is often, “Did you produce other versions or estimates beyond the one(s) about which you just testified?”
The honest expert must face the possibility that all written versions will be reviewed at the trial.
On the defense side, a fundamental issue is whether a defense economist should be asked to provide a formal written analysis. More commonly, the defense uses its economist to help prepare a cross-examination which undermines the written report of the plaintiff’s economist.
It is felt that testimony by a defense economist may become the “bottom line,” below which a jury will not go in an award.
The exception, when a defense estimate and testimony may be necessary, is when the plaintiff economist has used especially tenuous assumptions or made significant errors.
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