How to Vet an Economic Damages Expert

Most economists are retained off a CV and a twenty-minute phone call. That is usually enough to find someone competent, and almost never enough to find out whether the opinion will still be standing after the deposition. The questions below take about the same twenty minutes and test different things.

1. Does the CV match the question in your case?

“Forensic economist” covers work that has very little in common from one matter to the next. Wage loss and earning capacity, lost profits for a going concern, business valuation, statistical analysis in a class case, and securities event studies are five different skills. A long CV weighted entirely toward one of them is not evidence of the others.

The useful version of the question is narrow: what have you done that looks like this? Not how many cases, but how many of this kind.

2. Ask what records they need before they give you a number

An economist who can price the engagement in detail before seeing anything is pricing a template. One who answers with a document request — tax returns, the general ledger, payroll, the employment file, whatever the theory actually requires — is telling you they intend to build the analysis from the record rather than from a formula.

The same applies to the damages number itself. Anyone who gives you a figure on the first call, before reading anything, has told you what their opinion is worth.

3. Ask how they would attack their own opinion

This is the single most informative question on the list, and the answers separate very cleanly.

An expert who has been cross-examined properly will answer immediately and specifically: the assumption that is weakest, the input that depends on somebody else’s testimony, the place where a reasonable economist could land somewhere else. An expert who says the analysis is solid has either not thought about it or is not going to tell you, and both are problems you will meet again at deposition.

4. Separate report experience from testimony experience

Writing a defensible report and holding up under seven hours of questioning are different jobs, and plenty of people are good at the first and untested at the second. Ask specifically about deposition and trial experience in this type of damages, and how recent it is.

Recency matters more than volume. Someone who last testified on lost profits eight years ago is closer to untested than the raw number suggests.

5. Establish which assumptions belong to whom

Every damages model runs on inputs, and they come from three places: the documentary record, the expert’s own analysis, and counsel. The third category is the one that gets experts excluded, and it is the one nobody discusses at retention.

Ask the expert to identify, before the report is drafted, which assumptions they will be adopting rather than deriving — a work-life expectancy, a but-for growth rate, the date a business would have recovered. Each of those needs support somewhere in the record, and the time to find out that it does not have any is now, not at rebuttal.

6. Match the timeline to the deadline, honestly

The earlier version of this page made one point worth keeping: an economist is most effective when there is enough time to do the work properly. That is not a scheduling nicety. A rushed analysis is a thin analysis, and thin analyses are where the cross-examination lives.

Work backwards from the expert disclosure deadline, not from trial. Allow time for the document request to be answered, the analysis to be built, the report to be written, and — the step most often skipped — for you to read it and push back before it is served. If the schedule does not support that, it is better to know at retention than in the week the report is due.

7. Run the conflict check first, not last

Conflicts are cheap to check and expensive to discover late. Send the full party list, including parent companies, affiliates and prior counsel, before any substantive discussion of the matter. Any economist with an established practice will have a process for this, and how quickly they come back is itself a signal.

What a good first call sounds like

The expert asks more questions than they answer. They want to know the legal theory before they discuss method, because the measure of damages follows the cause of action. They tell you what they cannot do as readily as what they can. They give a range rather than a number, and they say what would move it. And they raise at least one problem with your case that you had not put to them.

Five things to listen for on the other side

1. Advocacy language. An economist who describes your case as strong on the first call is auditioning, not analyzing.
2. A number before the records. Covered above, and worth repeating.
3. Refusal to give a range. Every honest damages estimate has one. An expert unwilling to describe it before the analysis is either overpromising precision or has not thought about the inputs.
4. “I have never been excluded.” Offered unprompted, this is a marketing claim rather than a qualification, and it invites exactly the motion it is meant to preempt.
5. No opinion about the opposing expert’s likely approach. Anyone who has worked this type of damages knows how the other side will build it. If they have no view, they have not seen enough of these.

The underlying point

An economist adds the most value early — before the theory of damages is committed to in a pleading, while the document requests can still be shaped around what the analysis will need, and while there is time to find out that a head of loss cannot be proven. Retained late, the same expert is quantifying decisions that were already made. The vetting questions above mostly amount to finding out whether someone works that way.

Related: commercial litigation support · California economic damages · check for conflicts.