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February 25, 2019 Practice Points

Guidelines for Evaluating Whether You Need an Economic Expert

Seeking the opinion of an economist can help focus your attention on the most central issues in your case.

By Alex Barnett

Complex cases involving economic harm or damages often rely on testimony provided by economic experts. Successful use of an expert depends in part on the underlying facts of the case, the legal theory supporting liability and damages, and the retention of the most appropriate expert at the right time.

Retaining an Economic Expert is Most Effective When:

  • You require an analysis of effects of conduct on businesses or consumers, or of damages, in complex litigation. In matters involving issues such as antitrust, price-fixing, or intellectual property, it is common for parties to rely on economic experts to define relevant markets and evaluate the competitive effects of challenged conduct. In breach-of-contract cases, for example, an economic expert might provide important economic context about marketplace developments to frame the dispute relating to the alleged breach, and offer opinions on causation, mitigation, or other damages issues. Economic experts bring unique credentials and expertise to support the foundations of your argument that cannot necessarily be obtained from fact witnesses or supported by legal argument.
  • The time horizon is sufficient to allow quality, in-depth analysis of relevant data and documents. Ideally, you should involve an economic expert prior to the discovery process—and for plaintiffs even prior to filing a complaint—to ensure that the legal arguments dovetail with economic reasoning and that all potential resources are available to support the expert’s analysis. Even if this is not possible, the most comprehensive expert reports should be built over time, ensuring that the expert has had a full opportunity to analyze the facts and data relating to a matter and reach the most robust conclusions.
  • The argument(s) that you intend to employ will likely rely on analysis of voluminous, complicated and/or unorganized data. Experts often work with support staff who specialize in the cleaning and analysis of data—data that are often poorly organized. For example, in litigation involving the effect of challenged practices on prices or other market trends over time, hiring an economic expert to explain, research, and analyze how the economic data relate to the challenged conduct yields a more vigorous and defensible end product.
  • Your team requires additional low-level support staff for document review and research. The expert’s support staff often has specialized expertise and can quickly recognize the most important documents needed for their analyses or for other economic arguments you hope to advance.
  • You expect the opposition will engage an economic expert. Your expert can assist in both the preparation of a rebuttal to the opposition’s expert report and the development of strategies for cross-examination, both at deposition and trial.

Retaining an Economic Expert is Less Effective When:

  • There is misalignment on resource allocation between your client and the scope of the project. Before starting work or engaging an economic expert, it is important to ensure that you, your client, and any potential expert(s) are on the same page regarding the scope and cost of the expert’s work. This includes agreement on the breadth of analyses to be performed and understanding the economic points those analyses may support (and which points may intentionally remain unsupported).
  • The expert has a prior record, either written or contained in verbal testimony, which may contradict your legal opinions or introduce issues with consistency. Some experts have an extensive collection of journal articles, textbook contributions, and publicly available testimony related to academic and industry issues that may be relevant to your litigation. Make sure to research a potential expert’s historical record on such issues and discuss directly as early as possible if you decide to retain the expert.
  • Your client is asking too much from an expert. Most economics experts specialize in certain topics and approaches to problem solving. Asking an expert to offer an opinion on an issue that he or she does not fully understand, or to support an argument clearly contradicted by the evidence, could end up hurting both your case and the expert’s reputation. An expert with a specialty in macroeconomics, for example, may not be the best choice to assess a competitive issue arising in an antitrust case.

Not Sure Whether Your Matter Is Right for an Economic Expert?

Many economic experts will offer an initial, high-level pro bono analysis and/or feedback on the merits of your case. Seeking the opinion of an economist can help focus your attention on the most central issues in your case—maybe even some that you had not considered.

Alex Barnett is an economist with Coherent Economics in Chicago, Illinois.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).