Trial testimony in a wrongful termination matter presents the compensation the employee lost, the benefit accruals that ended, the front pay period, and the replacement earnings, with each component on its own board. For a long-tenured employee the pension and retiree health losses need a plain-language explanation of what the employee was accruing and how the termination cut it off. The opposing economist typically argues for a shorter front pay period and higher replacement earnings; the direct examination should present the tenure and job market evidence behind the economist's period and show the total under the alternative.
Checklist
Prepare boards for back pay, front pay, benefits, and pension losses
Prepare a plain-language explanation of the pension and retiree health losses
Prepare the mitigation board with the job search record and replacement earnings
Prepare a comparison of the two economists' front pay periods and replacement earnings assumptions
Rehearse the present value explanation
Questions to ask the economist
How will you explain a pension loss to a jury that has never seen a plan formula?
What evidence supports the front pay period, and how will you present it?
What does the total look like under the opposing economist's period?
How will you handle cross on a replacement job that pays less?
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
The pension and retiree health plan documents relied on
Draft demonstratives
The opposing economist's report and deposition transcript
Common pitfalls
Presenting the pension loss as a number without explaining what was accruing
Failing to show the replacement earnings credited, which lets the opposing side suggest they were ignored
Leaving the front pay period to be characterized by cross
By showing what the employee would have received at retirement under the plan's formula with continued service, what the employee will receive with service ending at termination, and the present value of the difference. A simple year-by-year board of the two benefit streams makes the loss concrete.
How does the economist explain retiree health coverage to a jury?
As a benefit the employee would have qualified for at retirement with continued service, valued at the cost of replacing that coverage over the years it would have been provided, less any contribution the employee would have paid. A board showing the eligibility date the employee would have reached and the years of coverage lost makes the loss concrete. The plan terms are the source and should be cited on the board.
How does the economist handle cross on a replacement job that pays less?
By showing the replacement earnings credited in full, then the remaining gap in pay and benefits, and by stating the basis for projecting that gap forward: the difference in pay grade, benefits, and advancement between the two positions. If the opposing side contends the gap will close, the board shows the total under that assumption. The answer is the same arithmetic the jury has already seen.
References
U.S. Bureau of Labor Statistics. (n.d.). Employer Costs for Employee Compensation (ECEC). U.S. Department of Labor. bls.gov
U.S. Department of the Treasury. (n.d.). Daily Treasury par yield curve rates. home.treasury.gov
Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983). supreme.justia.com