While at trial the plaintiffâs attorney during cross examination focused upon the spreadsheet used by the defenseâs economic expert to allegedly prove that there were zero economic damages. The expert had relied heavily upon research assistants to construct the spreadsheet, but under the expertâs supervision. Unfortunately, the expert had not carefully examined the calculations and was not aware of several calculation errors. The spreadsheet was blown up as a trial exhibit, along with an alternate spreadsheet with corrected figures. The expert’s testimony at trial was inconsistent with the corrected spreadsheet. The expert was forced to acknowledge to the court the calculation error, and tried to explain it was not a serious one. Yet it was too late. The jury lost confidence in the testimony. The jury awarded the plaintiff more than $12 million in damages.
There are times in which the economic expert is either unprepared or led into difficult positions where the unforeseen occurs. Likewise, there are times in which the cross examination opens the door for further damaging economic testimony. Over the years, we have learned some very valuable lessons, albeit at the expense of the opposition.  We look at these unforeseen occurrences and mishaps as incredibly rich and valuable resources. They certainly make us keenly aware of possible pitfalls for the economist and for the cross examining attorney. Our team, and particularly our experts, not only spend the necessary time up front examining, analyzing and evaluating facts, data, depositions, reports, academic literature and documents that support our position but, we go through a similarly rigorous exercise in reviewing the oppositions position from a forensic perspective to ferret out errors in execution, argument pitfalls and areas of weakness the opposition is exposed to. The process we employ illuminates the mindset in which we approach each case. Identifying, noting and valuing each critical misstep thus helping build on our firm wide pool of knowledge which we bring forward to each new case. Here we have assembled a few short abstracts that demonstrate some of our findings over the many years and various cases.
The plaintiffâs expert was considered to be a negotiations expert. He was formally trained in the law, but had no economic training. In a patent infringement suit, he âinventedâ a bargaining scenario which put the opposing side in an unrealistic and compromised position. His âinventedâ situation created extravagant damage amounts which were unable to be substantiated with any economic principles. After a finding of infringement, the jury awarded these damages to the plaintiff.
On appeal, the appellate court looked at the methodology of the negotiations expert and threw out all of his work and testimony. In their decision the appellate judges specifically indicated that they could not see where he had adhered to any sound economic principles and remanded the case for retrial on the damages.
