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"Changing Currents in Employment Law" is the DC Bar's annual three-hour event featuring legal updates and practice tips from the area's top employment attorneys — all for CLE credit. TELG's Scott Oswald serves as faculty director and will moderate the event. Here he previews the panel on use of experts with panelist and defense-side lawyer David Greenspan of McGuireWoods LLP.
This interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on August 14, 2018.
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(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: So we are in David Greenspan’s office and we’re going to talk a little bit about his panel at “Changing Currents in Employment Law” — Use of Experts in Employment Cases.
David, give us a sense of what we can expect for the panel on experts in employment cases. If I’m at the Changing Currents CLE, what might I see at that panel?
David Greenspan: We’re going to cover a couple of things at a high level, and we’re going to drill down into each of them.
First thing we’re going to talk about is selection issues. What makes a good expert and how you select experts, coming at it from the plaintiff side and the defense perspective. And we’re going to talk about things that we see in terms of what makes a good expert — and what things you might want to avoid.
We’re also going to talk about the rules. There have been changes — the 2010 [federal] amendments, in DC there were amendments in 2015. So we’re going to talk through all those technical issues in terms of discovery, the reports, the requirements. We’ll focus on qualification issues, as well as some Daubert cases, recent developments in that regard.
And then we’re going to talk a fair amount about depositions and trial issues. How the expert really plays into the narrative of a case, whether you’re telling the story of the plaintiff or you’re telling the story as an employment defendant.
Oswald: So let’s take a situation where you have a new case. You’re talking to your client about the use of experts. When do you use experts in an employment case?
Greenspan: So I have to break that question into two parts.
There’s traditional employment cases, single-plaintiff cases where somebody is bringing a disparate treatment claim based on their belief that something happened to them with respect to their employment. That’s, from a management-side perspective, more of a defensive posture. I have various experts in fields that I’m always watching out for — but I want to let the plaintiff lead the dance, for lack of a better term. Whether or not there’s going to be a vocational expert or an econ expert. Whether or not there’s going to need to be an IME, any medical issues that come into play.
And then there’s always that fourth category that folks don’t focus on, but we’re going to talk about [on the panel], which is attorneys’ fees — on both sides, quite frankly. Sometimes having expert testimony ready for attorneys’ fees is something that people forget about. They get to trial and it’s either too late or it’s insufficient.
Now, the other type of employment case that we frequently litigate, I call them employment mobility cases — trade secret, non-compete, defamation cases. Those are cases where I think both sides are looking at it from an offensive and defensive posture. In those regards I think valuation of things, whether it’s a document, a line of business, a person’s value to a practice or company — those are the types of issues where we have to be a lot more, in my opinion, proactive.
We’ll talk through those issues in the session.
Oswald: So what makes a good expert, in your mind?
Greenspan: I think first and foremost a good expert is someone who can tell a story.
Being qualified and having the chops to opine to a reasonable degree of certainty — everybody that you retain ought to be able to do that. It’s our job as lawyers to make sure that we put that person in front of the client, in front of the court, and eventually in front of a jury.
But a good expert can come in and weave their portion of the narrative into your overall story. It requires the ability to talk like a human being. It requires the ability not to talk at people. It requires the ability to actually be vulnerable in some regards.
One mistake I see — and this is not just an issue for experts, I think [it applies to] lawyers, witnesses, everybody through the narrative — is, “[I’m] infallible: Everything I’m saying is true, and there’s nothing about what I’m saying that’s at all gray.” I don’t think that’s an appropriate way to tell a story and I think for experts that’s very much true.
I want an expert who can say, “Here’s my opinion, here’s how it fits in. Here’s what’s strong — and here’s where there might be two sides. But here’s why [my] perspective is the stronger of the two.”
Oswald: Talk to us a little bit about the vocational expert — what you look for in a good vocational expert, and when you’re using a vocational expert in a case.
Greenspan: It’s interesting because in this area, in the DMV, there aren’t that many vocational experts. I think we are recycling the same handful of folks in this field, as compared to other fields, more often than not.
My view on vocational experts is that they need to be able, again, to tell a story about, from my perspective, here’s what a person in a reasonable position — this is how long it should take them to find employment, and this is the level of employment they can expect to find.
I think we’ve talked about this before, recently: It really does go to how it fits into the story. If a witness is on the stand, as a plaintiff, saying, “I haven’t been able to find work in the 18 months since I filed my lawsuit,” and there’s an expert who’s saying, “Yes, the average person with your experience could do this in nine months and could have earned an income at 80 percent of what you were making” — well, not only is that impactful for mitigation, but it also undercuts the story that the plaintiff is telling about what kind of person they are, and how hard they’re looking for a job.
Oswald: So the mitigation story matters?
Greenspan: The mitigation story matters. This is something that that I’ve always viewed, from a defense perspective, as what a vocation expert is there to do — not just to set the parameters, but also to limit exposure in terms of mitigation and the credibility of the plaintiff if that person isn’t really trying as hard to get employment as they say they are.
A lot of people are out there looking every day, they’ve got their LinkedIn profiles, they produce volumes of documents — nowadays it’s easier to do that. And you can see that they’re trying very hard. It doesn’t work then.
But a lot of people are not that aggressive in looking.
Oswald: I got it. So tell us a little about you. When you’re not lawyering and you’re not with your family, where do you spend your time? What’s your passion?
Greenspan: Sports. I actually am with my family or lawyering 99 percent of the day, like most of us are. But I love local sports. I play tennis a fair amount — and would like to play a fairer amount.
I also do pickup basketball with the same group of guys. So in the evenings, after homework is done and the kids are getting ready for bed, off I go and hopefully once or twice a week I get to play with my buddies.