Trial testimony in an employment discrimination matter asks the economist to show the jury two compensation paths year by year: what the employee would have earned and accrued, and what the employee actually earned and can reasonably expect to earn. Demonstratives should separate back pay, front pay, and benefits, show the mitigation earnings credited, and make the front pay period visible as a choice with a stated basis. The opposing economist typically differs on the but-for raises, the front pay period, and mitigation, and the direct examination should present those choices and the evidence behind them before cross.
Checklist
Prepare a year-by-year board of the but-for path and the actual path with the gap
Prepare separate boards for back pay, front pay, and benefits
Prepare the mitigation board showing replacement earnings credited and the job search record
Prepare a comparison of the two economists' front pay periods and but-for assumptions
Rehearse the present value explanation for the front pay component
Questions to ask the economist
How will you explain the front pay period as a reasoned choice rather than a guess?
How will you show mitigation in a way that does not concede the opposing side's position?
What does the total look like under the opposing economist's front pay period?
How will you explain the value of lost equity or bonus components?
Timeline
One to two preparation sessions in the week before testimony, with the back pay figure updated to the trial date.
Required documents
The final report updated to the trial date
Draft demonstratives
The employer's compensation records and comparator data relied on
The opposing economist's report and deposition transcript
Common pitfalls
Presenting a total without separating back pay, front pay, and benefits, which the court may need to treat differently
Failing to update the back pay to the trial date
Leaving the front pay period unexplained on direct
Why does the economist separate back pay, front pay, and benefits at trial?
Because the court may decide them differently: back pay is a record-based figure to a date, front pay is a projection that may be decided by the court rather than the jury in some settings, and benefits have their own plan-based valuation. Separate boards let the fact finder apply its findings to each without recomputing the whole.
How does the economist present mitigation without arguing the employee's case?
By showing the replacement earnings actually received, credited year by year against the but-for path, and the job search record that produced them. If the opposing side contends the employee should have earned more, the board shows the loss under that assumption as well. The jury decides whether the search was reasonable; the economist shows what each answer does to the number.
What happens if the court, not the jury, decides front pay?
The separate boards for back pay, front pay, and benefits let the jury's award and the court's determination rest on different components without recomputing either. The economist presents the front pay projection with its period and basis so the court has what it needs, and the back pay and benefit figures stand on their own for the jury. That is the main reason the components are kept apart.
References
U.S. Bureau of Labor Statistics. (n.d.). Current Population Survey (CPS). U.S. Department of Labor. bls.gov
U.S. Bureau of Labor Statistics. (n.d.). Employment Cost Index (ECI). U.S. Department of Labor. bls.gov