Overview of Earning Capacity Disputes
Most people do not fully appreciate the value of their earning capacity - their ability to compete in the workplace and maximize their earnings - until it has been threatened, damaged, or needs to be fully harnessed. Earning capacity disputes are common in civil litigation. Qualified career counselors, serving as expert witnesses, can add immeasurably to help plaintiffs, defendants, and triers of fact comprehend pertinent career issues as they deliberate the merits of claimed career-related damages.
Lawyers specializing in employment and family disputes frequently seek career counselors' expertise. Consider, for example, an employee with a long tenure of employment and progressive record of career advancement with her employer before an alleged wrongful termination. Having realized a high level of compensation, many individuals in this situation find it difficult to match previous compensation levels and, accordingly, pursue, through litigation, claims of damaged earning capacity. Expert witness career counselors often intercede to provide analyses that address a range of factors germane to disputed career damages - from issues associated with diminished self-worth and social stigmatization that may be contributing to an individual's difficulty realizing prior levels of career accomplishment, to secondary gain motivation associated with pending litigation.
Questions about earning capacity frequently arise in cases involving marriage dissolution: a judge's basis for establishing alimony payments is often predicated, in part, on the earning capacity of one or both spouses. In cases in which, for example, one spouse has been the primary wage earner and the other has been either a homemaker or less than full-time worker, questions about latent earning capacity emerge. Career counselors' insight on the spouse's potential earning capacity with and without retraining, potential retraining costs and time, and ability to compete in the local labor market help determine a fair earning capacity to impute concomitant with alimony.
Many claims of loss of earning capacity emanate from injuries that arise from a personal injury, allegations of medical malpractice, a work-related injury, product malfunction, or some other mishap. Injuries a person sustains - physical, cognitive, psychological, or a combination - can affect career development in ways not readily apparent. Diminished access to preinjury career opportunities, compromised work functioning, longer search time between jobs, lessened opportunities for promotion and career advancement, truncated work life expectancy - these are but a few of the factors that can impair ability to pursue career development and earning capacity. In claims of this sort, a background in vocational rehabilitation and rehabilitation counseling is often required.
The Evaluation Process
Generally, conducting a career-related forensic assessment involves the following steps:
A more detailed discussion of the mechanics associated with these steps follows. Facts idiosyncratic to a case dictate the scope of an expert's analysis; every case has its nuances.
Reviewing Pertinent Records
Shortly after becoming retained, expert witnesses review pertinent records necessary to become familiar with pending facts and issues. The most common records of interest to a career counselor include employment and earnings records; documentation of job search efforts; scholastic records; deposition testimony by the plaintiff, former employer(s), and counterpart experts; and records addressing impairments - physical or otherwise - that may impact employability and career development.
Career counselors' face-to-face examinations of the subject of an earning capacity assessment often include a clinical interview and the administration of standardized tests. During a clinical interview, career counselors inquire about prior education, special training, and on-the-job training; work experience; impairments to pursuing career development; efforts initiated to mitigate claimed career damage; and changes in career plans. The testing portion of the examination typically involves administering tests from three domains: aptitude and mental functioning, personality, and career interests.
Labor Market and Career Research
Integrating career information into an evaluation invokes external standards that provide objective information helpful in refining and quantifying expert opinions. Information about requirements necessary for entry in occupations or median wage rates of incumbents employed in occupations within a specified locale, for example, can provide a benchmark for comparing features of an individual's career profile. Like other settings in which career counselors work, career counselors in forensic settings often have interest in wages, job availability, and training requirements.
Assimilating Data from Records, Examination, and Research
Culling through, synthesizing, and ultimately reducing inputs to the evaluation to opinions that withstand the scrutiny of cross examination requires considerable career counselor knowledge and skill. Among the challenges career counselors encounter are reconciling disparate opinions posited by medical and other experts, dealing with inconsistencies between information that emerges from an analysis, and negotiating sometimes intimidating and unfair lawyer techniques aimed to undermine credibility.
Reporting Findings and Opinions
Ultimately, a career counselor serving as an expert witness distills the information and analyses amassed into opinions. The opinions are sometimes first presented to the referral source during a consultation. Often, career counselors are requested to outline the process they underwent, along with their findings and opinions, in a report submitted to the opposing lawyer. Further inquiry and, usually, vigorous challenge of opinions occurs during the expert's deposition and trial testimonies.
Judges and others presiding over litigated matters govern evidence - including expert witness testimony - admitted for deliberation. Expert witnesses possess pertinent education, credentials, and experience qualifying them to testify and offer opinions. Career counselors aspiring to perform forensic work, however, appreciate that requisite qualifications merely offer an entre to qualify as an expert witness. Credibility and ability to comprehensibly and succinctly communicate concepts hallmark those who successfully impact triers of fact.
Expert witness career counselors appreciate that lawyers' techniques to defame, frustrate, discredit, and humiliate them are de rigueur and, unfortunately, drive our adversarial civil litigation process. Career counselors who persevere as expert witnesses possess mettle and resolve that does not succumb to intense and often badgering, withering, and manipulative cross examination and harassment.
Michael Shahnasarian, Ph.D., is President of Career Consultants of America, Inc., in Tampa, Florida. More information about career counselors as expert witnesses can be found in Shahnasarian, M. (2004). Assessment of Earning Capacity (2nd ed.). Lawyers and Judges Publishing Company: Tucson.