Wrongful Termination

Considering an expert: back pay, front pay and the mitigation record

The considering stage decides whether the damages figures can be stipulated or whether they turn on contested vocational facts. Back pay from the termination to the hearing is arithmetic once the compensation history is known; front pay and mitigation are not, because both depend on how long a person with this background should take to find comparable work in this labor market and on whether the search actually made was reasonable. Counsel reads the post-termination job search record, the comparable-occupation wage data and the benefits the position carried, and retains a vocational expert where the search or the horizon is disputed, and an economist where the projection and its present value will be.

This stage also identifies which benefits are in play, because a damages analysis that omits employer retirement contributions or health coverage understates or overstates the claim depending on which side asked for it.

Retaining: the search record, the comparable market and the horizon

Retention hands the vocational expert the terminated position with its compensation and benefits, the person's education and work history, and every record of the search since: applications, interviews, offers, refusals and any employment obtained. The engagement asks two questions: whether the search was reasonable for a person with these qualifications in this market, and how long comparable employment should take to secure. KWVRS vocational experts answer both from documented labor market evidence, and where an economist is also retained the expected re-employment date becomes the economist's front pay end point, so the two reports are scoped together and cross-referenced.

The engagement letter should state the damages framework counsel is using, including any offsets, so that the expert's mitigation opinion is written in the terms the forum will apply.

Preparing for deposition: the reasonableness of the search and the end of front pay

Deposition in an employment matter concentrates on the mitigation opinion and the front pay horizon. The expert prepares to explain the standard applied to the search, the specific applications and outcomes relied on, the comparable positions identified with their wages and requirements, and the labor market data behind the expected time to re-employment. Where the opinion is that the search fell short, the expert should be able to say what a reasonable search would have looked like; where it is that the search was reasonable, what the evidence of diligence was. The benefits valuation is defended on the employer's plan documents rather than on estimates.

Because both sides retain vocational experts on these questions, preparation includes the opposing report and the points of difference in data and assumption.

Trial: pay categories a jury can keep apart

At trial the vocational and economic testimony is organized around categories a jury can hold separately: back pay, front pay, benefits, and the mitigation offset. A single demonstrative that lays those out over time, with the termination date, the hearing date and the expected re-employment date marked, carries the structure. The vocational expert explains the search and the market in ordinary terms and leaves the present value arithmetic to the economist. Consistency with the deposition and with the retaining attorney's damages framework is checked in the final preparation session, and counsel decides the order of the two witnesses so that the horizon is established before it is discounted.