Many attorneys use expert witnesses to establish certain facts relevant to the case they are building. But expert witnesses can also play an essential role in the damages phase of a trial, providing key information necessary to understand how damages should be calculated or which damages can be proven. Here, we discuss the ways attorneys can use expert witnesses to bolster their arguments regarding the value of damages in a case, including how to establish damages or how to calculate them.
When Can a Damages Expert Help a Case?
In a personal injury lawsuit, a plaintiff must prove not only that the defendant caused their injuries, but that those injuries are compensable via monetary damages. In some cases, causation of the injury is clear, but the link among cause, injury, and damages is not. This is where an expert witness’s input can help clarify the link, if any, between the injury the defendant caused and the damages the plaintiff seeks.
Though there is no “bright-line” legal test for determining when an expert may be called to testify about damages, courts have been more willing to allow these experts to testify when:
- A close tie exists between liability and damages, such as in personal injury, wrongful death, and business interruption cases
- Accepted methodologies are used to calculate the amount of damages
- The calculations do not require the expert to speculate about an alternative cause for the losses
In some cases, an expert witness testifying or opining on damages may be required to consider causation. In these situations, choosing an expert with experience in reconciling alternative means of calculating damages in light of the theory of causation can improve the likelihood of the witness being accepted as an expert.
What Do Damages Experts Do?
Because expert witnesses involved at the damages stage tend to focus on the facts connecting the injury to the damages required to compensate the plaintiff, their work often concentrates on economic damages rather than non-economic damages. An expert witness can help establish the value of economic damages by:
- Analyzing data to determine the extent of damages, particularly when damages may have accrued over years or in subtle ways (such as a gradual decline in income following an injury)
- Consulting with the attorney during discovery, particularly when discovery regarding damages is extensive
- Providing an appropriate means of calculating damages and a clear explanation for jurors as to why that calculation method is superior to others in this particular case
- Determining the value of any deductions or reductions, such as the reduction of an award to present value
In each case, the expert witness helps to establish the appropriate dollar amount assigned to various types of damages. The right expert can explain to the jury exactly how those numbers were reached, giving the jury a clear understanding of why the numbers are correct in this particular case.
Establishing a strong case for a particular value of economic damages can help attorneys predict the amount of non-economic damages that may be awarded as well. Damages for losses like “pain and suffering” are so difficult to calculate that many juries use medical bills or missed work as a guideline for the total loss amount. Significant economic damages, then, may suggest to a jury that significant non-economic damages should be awarded as well. Conversely, minor economic damages may suggest that non-economic damages were likewise small. Although the expert witness may not work or testify specifically on the topic of non-economic damages, the expert’s work on economic damages may play a role in the jury’s analysis of non-economic damages.
Tips for Attorneys Seeking Expert Witnesses for Damages
Attorneys seeking expert witnesses to testify as to issues of damages can benefit their case by keeping the following items in mind:
- Choose an expert who uses a clear approach to their calculation based on accepted principles of accounting, particularly when business or income losses are involved
- Determine whether the expert will need to discuss causation, and if so, choose an expert with experience in the subject matter of the case as well as experience in forensic accounting
- An expert who can clearly explain the calculations used to a jury with little or no experience in accounting will be more persuasive than one who cannot explain these concepts clearly
