Wrongful Death

Considering an expert: the economist first, the vocational expert when the earnings record is incomplete

The considering stage decides whether a forensic economist alone can carry the damages case or whether a vocational expert is needed alongside. An economist can project lost earnings, fringe benefits and household services from a documented earnings history and household composition. A vocational expert is added when that history does not describe the decedent's capacity: a young person who had not entered the workforce, a worker between careers, an episodic or self-employed earnings pattern, or a surviving spouse whose own earning capacity is put in issue. Counsel decides this by reading the tax returns, employment records and household facts before approaching any expert.

The same review identifies the jurisdictional questions counsel must settle and communicate to the experts: how personal consumption is treated, whether household services and loss of guidance are recoverable, and what the collateral source rule does to the figures. Attorneys confirm the governing rule for their case; the experts apply it.

Retaining: the earnings record, the household and the assumptions

Retention in a death case is largely the assembly of a record. The economist needs several years of tax returns and wage statements, the employer's benefits summary, the decedent's education and work history, the household composition with the ages of dependents, and a description of the services the decedent performed at home. The engagement letter should state the jurisdictional treatment of personal consumption and collateral sources so the economist applies the right framework from the first draft. KWVRS economists document each assumption, the worklife table, the growth rate, the discount rate and the consumption percentage, with its source, so that the report can be read and challenged on its own terms.

Where a vocational expert is retained, the engagement defines the capacity question to be answered and hands the economist the resulting earning capacity as an input, with the two reports cross-referencing each other.

Preparing for deposition: consumption, worklife, growth and discount

The deposition of a wrongful death economist is an examination of assumptions. Preparation goes through each one: the personal consumption percentage and whether it is household-specific or generic, the worklife table and why it fits this decedent, the wage growth and discount rates and their sources, the fringe benefit rate, and the time-use and wage data behind the household services figure. The expert should be able to show what the total becomes under the other side's assumptions, because that arithmetic is often the substance of the cross-examination.

A vocational expert deposed in the same case prepares on the reconstruction: the education and work evidence relied on, the occupations projected and why, and the labor market data for them.

Trial: an earnings projection a jury can follow

At trial the economist's task is to make a present value calculation intelligible. The testimony proceeds from the decedent's actual earnings to the projection, then to each deduction and each reduction, with a demonstrative for each step, and pauses on personal consumption long enough for the jury to understand why it is taken out. Household services are shown by task and by hour rather than as a single figure. The testimony must agree with the deposition and with any vocational testimony that preceded it, and counsel decides the order of the two witnesses with that dependence in mind.