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

Resources of Economist

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:

  1. His specific case file.
  2. His file or notebook of back-up economic or related data.
  3. His exhibits.

As trial approaches, the economist must ensure that he is prepared to effectively utilize these resources.

The Case File

A disadvantage of utilizing experienced economic experts is that they are very busy. They may be testifying in your John Brown case today after and Adam Smith testimony yesterday. Yet, on your day, they must be well prepared for, and thinking of, John Brown.

The ability to do this accrues from advanced preparation.

The file itself must contain all information, but only that information necessary for testimony. The economic report may be first in the file with a cover sheet that contains the input program. The economist can ascertain from this one sheet most or all of the inputs which produced the output.

Next in the file should be the package of detailed calculations which led to the economic report. Next will be back-up data such as income tax returns, W-2’s, completed Information Guide Sheets, specific employer contributions to fringe benefits, etc.

The point is that the plaintiff’s economist should have a specific protocol for the organization of his file, so that he knows what is where.

Moreover, he must have taken the time to ensure that he is very familiar with the specific contents of this file. Nothing is worse than the expert who continually shuffles or fumbles through his file, or the expert who forgets the name of the injured or deceased party.

Back-Up Data

In addition to the specific file, the economic expert may have a file, or a Trial Notebook, containing general economic data about which he may be asked. No economist, or any other person, can memorize all of the economic data which could be the subject of a random question.

However, a practical rule is to have handily available the answers which, if not known, would embarrass on in the eyes of a lay juror. Horror stories abound about the economist who did not know the current minimum wage, or inflation rate, or the unemployment rate in the relevant state.

Yet, there is a defined range of statistics beyond these which relate to economic loss cases and which the economist may choose to have available at trial.

Demonstrative Evidence

It is very true that one picture is worth a thousand words. A basic rule which we recommend on the plaintiff’s side is to blow-up the “bottom line” summary chart on a large cardboard poster. This can be introduced as evidence and sit in the jury room.

Other tables which have been prepared in the economic analysis to lead to the “bottom line” may also be blown up, so that the economist, at trial, may explain these in front of the jury.

The use of demonstrative evidence is further discussed, and a complete sample testimony is provided, in the following chapter on testimony.

Attorney/Economist Conference

Before testimony, the plaintiff’s attorney should provide for at least 2 to 3 hours of preparation time with his economist if this is their first time working together.

For subsequent cases, 1 to 2 hours of specific preparation is still needed. Lawyers are not economists, and they need to be refreshed. Every case may involve different economic applications and legal parameters on economic testimony change.

The experienced economic expert will probably have an order of questions and answers to suggest. He or she is not an attorney but does have experience in explaining economic principles.

In the interplay of backgrounds and skills of attorney and economist, a specific plan of questions should emerge, as well as some discussion of re-direct examination.


Another problem with economic experts is that they may have a conflict with your desired time of testimony. This may be because of other cases or a teaching conflict, as many forensic economists are also college professors.

This is the reason that the attorney must carefully coordinate the available time of his expert with his preferred order of testimony. Advance notice of specific time to an expert is critical.

The experienced expert understands the time management problems associated with trials, but he or she also has inescapable commitments. If testimony is rendered impossible, a videotaped testimony can be arranged.

Preparation for Testimony: Defense

Much of the preparation process has been discussed above regarding discovery depositions and hiring a defense economist. Specifics of cross-examination tactics, for which one should prepare, are discussed in the next chapter.

However, in preparing for an attack on the plaintiff’s economist, the defense attorney can produce several exhibits in conjunction with his advisors.

For example, if the plaintiff’s economist has projected wages without inflation, perform the same projection with inflation and be prepared to show the jury the very high wage earnings in future years.

Or, take the “bottom line’ lump sum analysis of the plaintiff’s economist and show the annual income in the first year, at current interest rates, compared to what the injured or deceased party might have earned in that year.

Many such exhibits can be prepared, especially with the aid of your economist.


For More Information…

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

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