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A 1996 Rand Corp. study of jury verdicts since 1985 showed that although plaintiffs won less often in product liability cases than in other types of cases, verdicts were significantly larger in product liability than in other types of cases (except medical malpractice) when plaintiffs did prevail. For defendants in product liability matters, this points to the importance of a strong, well-organized effort on the damages side of the case. Such an effort should include a careful plan of attack on cross-examination of the plaintiff’s damages expert. As a forensic economist, I have been cross-examined perhaps thousands of times and have seen it all — the good, the bad and the ugly. While I have rarely, if ever, seen a case won on cross-examination alone, I have seen far too many attorneys seriously compromise their economic damages arguments through inept cross-examination. AVOIDING COSTLY CROSS-EXAMINATION ERRORS Good economic damages cross-examination tells — clearly, coherently and without irrelevant detail — the story of how the tort altered the plaintiff’s economic situation. Bad economic damages cross-examination confuses that story. Unfocused, random cross-examination with no apparent point serves only to irritate the jury. Here are some deadly mistakes counsel should try to avoid at all costs when cross-examining an economist: � Quibbling over minor issues. There may be a question over growth rates, discount rates or other technical details particular to the case, but unless these details add a significant amount to the ultimate damages figure, it is best to leave well enough alone, rather than risk confusing or boring the jury. If you must delve into such technical areas on cross, always try to get across the actual monetary impact, rather than leaving it up to the jury to connect all the dots. � Pointless attacks on the expert’s credentials. Asking the opposing expert whether he or she advertises or has published has minimal impact on a juror’s impression of the expert. � Asking open-ended questions. Probably the most disastrous mistake counsel can make in cross-examining an opposing expert is to open a wide door for that expert by asking open-ended questions such as, “Please explain to me how you arrived at…” or “Why did you assume…” PLANNING THE CROSS-EXAMINATION STRATEGY When planning your cross-examination strategy, carefully define your goals. This should help to keep the cross-examination on track and avoid pointless, boring and rambling cross. Goals can include planting seeds of doubt, compelling your figure and setting up testimony by your own medical, vocational and economic damages experts. The best cross-examination to use when setting up testimony by your own experts is short and to the point and, ideally, shows weaknesses in the opposition’s damages argument. For example: “Did you assume that the plaintiff, who was unemployed for six months before the accident, would be at work on day one after the accident?” Or, “You did not consider that the plaintiff’s heart condition would have affected his earning capacity even if the tire had not exploded, did you?” Presenting compelling damages argument is difficult without an economist. In many cases, however, cross-examination can be effective in undermining a damages claim. Here is an example of how this might be accomplished in a wrongful death case in which the decedent had been receiving workers’ compensation for a back injury unrelated to the tort at issue: � You relied on various studies to derive a 25 percent maintenance figure, correct? � How exactly did you derive this figure? � What studies did you rely on? � You are familiar with these studies and the corresponding figures, correct? � Those studies show that the maintenance percentage declines as income grows, and vice versa, do they not? � So, if Mr. P’s income were $60,000, what would his maintenance percentage be? � If his income were $20,000, what would he maintenance percentage be? � Would 40 percent be reasonable? � You indicate that Mr. P’s future earnings would track his prior earnings of $44,000, correct? � That was what he earned in 1993, correct? � Thus, if he died in 1994, rather than in 1996, you would have projected earnings in excess of $44,000 for 1994 and 1995 under your method, correct? � You would, therefore, have the jury compensate him more than $80,000 for a period of time over which we know he only made $10,000; is that correct? � You assumed Mr. P was healthy at the time of his death, did you not? � You calculated lost earnings from the date of his death, did you not? � You assumed he was capable of working and would earn at a rate of $44,000 per year beginning the day after his death, correct? � He was not earning at the rate of $44,000 at the time of his death, correct? � Are you aware that Mr. P was not healthy at the time of his death? � Are you aware that he was on workers’ comp at the time of his death? � You are a vocational expert, correct? � In matters involving personal injuries, you testify to the reduced earnings that result from the injury, correct? � Please assume that Mr. P would have been capable of earning $20,000, given his bad back for which he was receiving workers’ comp. Using the 40 percent maintenance figure you gave before, the loss would be $12,000 per year, or $360,000 total, correct? In this same hypothetical, but where the defense has its own economist, cross might best be posed like this: � You used $44,000 as the base earnings, correct? � You assumed Mr. P was healthy, correct? � You are aware that in the two years prior to his death, Mr. P made less than $10,000? � As a vocational expert, you typically assess reduced earnings stemming from an injury, correct? � You are aware Mr. P was on workers’ comp? � Did you assess his reduced earning capacity? � You are aware that lower income means a higher maintenance percentage, are you not? Clearly, using cross-examination to set up your own economic damages experts to tell your damages story is far easier than compelling an opposing expert to tell your story. Either way, it is crucial to give the jury a fair and reasonable alternative to the plaintiff’s damages claim. Jerome M. Staller, Ph.D., is an economist and president of the Center for Forensic Economic Studies, a Philadelphia-based firm of economists providing economic and statistical analysis and testimony. Telephone: (215) 546-5600; e-mail: [email protected].

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