Month: August 2017

What attorneys should expect when working with an expert on a personal injury case

In most instances, analyses in personal injury cases are a necessity.  Personal Injury cases require an expert to value the loss of earnings, ability, or life of an individual.  In addition, experts can also calculate the loss of household services the individual’s household has suffered, that is the daily services someone would provide their children or spouse living in the home.  

To begin performing an economic analysis of the loss of earnings of the injured, there is one crucial step that many attorneys try to sidestep: Hiring a vocational expert.  Very few economic experts performing these types of analyses will make a judgement regarding the Plaintiff’s ability to work, and those experts that will, are not the ones an attorney wants to hire.  Sure, doing this will save money, but if an attorney wants to cross all their T’s and dot all their I’s, he or she will need to hire a vocational expert.  After crossing this bridge, the analysis should be smooth sailing.

Many attorneys ask economic experts to also analyze the Plaintiff’s loss of household services.  In most personal injury cases, the Plaintiff has a reduced, or complete loss of, ability to perform tasks such as inside housework, cooking, shopping, and caring for household children.  A major question in determining a loss of household services is, who was the Plaintiff providing household services to?  Frequently, experts will provide this analysis knowing that the Plaintiff lives alone.  Widely accepted economic theories and methodologies state that in order to provide household services to someone, they must be providing those services to someone.  Often, those persons receiving these services would be children living in the household or a spouse.  However, it is inappropriate to assign household services to someone who lives alone.  It is important for attorneys, representing the Plaintiff or Defense, to keep this in mind as it can drastically affect the reliability of an expert’s analysis and be a major point of contention in a rebuttal report.  

Determining Mitigation efforts in Wrongful Termination cases

In determining if a Plaintiff made extensive efforts in their job search following their alleged wrongful termination, economic experts should look into several key factors.  Lawyer’s should be very familiar with these factors in order to best represent their client, whether Plaintiff or Defense.

  1. How many jobs has your client applied to and are they similar to the position they were terminated from?  A major point of attack experts should address in their reports will examine if the Plaintiff has performed a sufficiently diligent replacement job search. In Texas, individuals are granted unemployment benefits provided they apply for a minimum of three jobs per week.  This number can be used as the threshold for determining if a Plaintiff has done his or her due diligence in finding replacement employment after the alleged wrongful termination.
  2. How long has the Plaintiff been unemployed?  Widely accepted labor market data from the U.S. Bureau of Labor Statistics can be utilized to determine the average range an individual with a similar job position, in the same job market, would expect to be unemployed.  If the Plaintiff has been unable to find replacement employment within the typical unemployment duration, it is not likely they have performed a sufficient job search.
  3. How many job openings were available in the Plaintiff’s job market at the time of their termination?  Again, data from the U.S. Bureau of Labor Statistics can be utilized to determine job openings per month that the Plaintiff would have been qualified to hold.  In many cases, there are a significant number of job openings in the area the Plaintiff is searching.  Occasionally, a Plaintiff’s job search records will reveal that they have applied to jobs in multiple job markets, sometimes spanning across several states.  To a defense attorney requesting a mitigation analysis, this is music to their ears.  The more markets a Plaintiff makes themselves available to, the more markets experts can include when determining a number of job openings.  This only increases the number of jobs the Plaintiff could have held had they performed a sufficient job search and strengthens the argument that they have not performed such as search.

How do you determine when your wage and hour case needs an economic expert?

Employment lawsuits involving wage and hour disputes can get very messy, very fast.  However, it is critical to determine if the data and the case will require an outside expert early on in the lawsuit.  The more hands and the more opinions on how to produce the result that is desired can only lead to more confusion.  Finding an expert that will know exactly how to work with your data and has a clear objective for finding the answer to your question will save attorneys and clients time, money, and frustration.

A majority of wage and hour disputes consulting firms encounter involve lost meal or rest breaks, time clock rounding, misclassification, or unpaid overtime.  Each of these types of disputes are different, however they all rely on the same type of data, time punch records and payroll records.  Without proper records of the employees, there can be no analysis.  Depending on the company involved and the nature of the case, these records can expand into the tens of millions of observations.  Experts will have the resources and statistical tools to compute large sets of data and export information that will reveal the severity or lack of severity, of the claims.

Essentially, if you find yourself diving in deep and losing yourself, as well as losing your question, in the data, call an expert.