“For its next witness, the defense calls the distinguished forensic economist…”
I was going to make this an ethics quiz, but there really is only one answer. The practice is ethically indefensible, and noxious too. The only question is how and why it is still occurring.
One reason may be that not enough people know about it. I certainly didn’t. Kudos to the Washington Post for shining light on a terrible, and terribly unethical, practice.
The American tort system frequently uses race and gender statistics to calculate the damages victims or their families should receive in compensation after someone is catastrophically injured or killed by another individual’s negligence or misconduct. Experts are allowed to testify regarding what a particular victim might have achieved and earned during their lives, were they not dead, or brain-damaged, or paralyzed. Race and gender are among the factors allowed into that calculation.
Writes the Post:
As a result, white and male victims often receive larger awards than people of color and women in similar cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured – projections that take into account average earnings and employment levels by race and gender.
Among the examples given in the Post report is a case in which a 6-year-old girl and a male fetus were killed in the same car crash. The settlement for the fetus was calculated to be up to 84 percent higher than the girl’s, according to court records. James Woods, a forensic economist in Houston, defended the system to the Post, arguing that it was the most accurate way to calculate the losses people have a right to receive when they are injured. “If there’s a difference in society, it is what it is. It’s a difference, and the economist’s job is to figure out what would have happened,” he said .
But that’s the problem, isn’t it? They have no idea “what would have happened.” Nobody does. Maybe the girl would have become Jennifer Lawrence, and been a multi-millionaire before she was 30. Maybe she would get married at 19 and raise kids for 20 years. Many she would get hit by a bus. Any “scientific” determination of what a 6-year-old “would probably” earn is wild and almost certainly inaccurate speculation. Think of how much culture and society will evolve over her life span. How do we know now what kind of societal balances and factors will be in play in a few decades, affecting her income and everything else? How can any forensic economist predict that, or, frankly, claim that he is able to do so?
Every individual, regardless of gender or race, still has an unplowed field before him or her. Race and gender aren’t destiny, and if they still are, we have to take measures to see that they are not. Individual determination, character, ambition, guidance, community support, diligence, talent, ability and luck will decide what an individual earns and accomplishes (and those are not the same things) over a lifetime. Omitting these factors and others from the calculations—and they must be omitted— render them the worst kind of statistical voodoo, using numbers to quantify the unknown and unknowable.
Judge Jack Weinstein of the Eastern District of New York presided over a case in which he blocked expert testimony arguing that an injured Hispanic boy was likely to have significantly less academic achievement than if he were a white Anglo, and thus should receive less lifetime compensation for his injuries. In an optional opinion written after the jury’s verdict, Weinstein stated his contempt for the continued us of such factors in calculating damages:
“Race and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American Dream. A traditional, automatic, unthinking approach by experts in the field can no longer be tolerated.”
Exactly.
Ethics Alarms 
I wish this surprised me. Kudos to the judge.
One thing I’m not clear about. Is educational attainment, current income, and lack of a criminal history used to determine damages awarded? On one hand, it’s obviously unfair to consider somebody’s ethnicity if they are a fetus or a child. Witness the number of kids coming from poor families that wind up going to some prestigious university whatever their race. However, some habitual criminal who winds up paralyzed or deceased is a different matter.
“The court ruled in the boy’s favor, but when it came to assessing damages, there was an uncomfortable conflict: The boy’s mother was white. His father was black. So what race was he?
The government argued that he qualified as black, which would have significantly decreased its liability. The plaintiff, with whom the judge eventually sided, pushed for considering both black and white statistics, according to court records.”
If you accept the proposition that compensation should be based on monetary considerations, then such issues inevitably arise.
If you accept the proposition that “all are created equal” and that loss of earnings is completely irrelevant, then they don’t. But only then.
Such estimation is guesswork. Unreliable. Inaccurate. But there is a responsibility to make the most accurate guess available. That should mean taking into account second and third derivatives at least over the time span. Unfortunately, at a time where median incomes are stagnant or falling, this can lead to less rather than more damages.
Just don’t pretend that the “best guess” is more than 1-2% reliable. Even if it’s what you have to use as everything else is even more inaccurate.
And if that leads to situations repugnant to the conscience, then it’s not the details that are significant, it’s the whole Angle Saxon weregeld concept the law is based on.
No credit for the Salians?
But there is a responsibility to make the most accurate guess available.
But if it really isn’t accurate and is in fact misleading and even damaging, then the obligation is not to pretend it’s accurate. This is like lottery players who study past results and use their phone numbers and birthdays to come up with a hard number to wager on “scientifically.” I also think it’s like the bad climate change models that claim more certainty than science and research supports. Inaccurate has to reach a point where it is deceptive to call it “more accurate.” Here’s what’s accurate: at this point, we have no idea what this child will be or do.
As I said – Just don’t pretend that the “best guess” is more than 1-2% reliable.
If you must use statistics then take a per capita average lifetime earnings
Bingo.
But do they deduct lifetime expenses? Sure, I might make $100 a year, but I spend $25 a year on housing, $20 a year on taxes, $20 a year on food and another $15 a year on experiences. The remainder of $20 a year would be what I was worth to others.
Or what if you had someone who ran their budget like the US Government? It doesn’t matter what your earning potential is, it’s your spending potential.
Fun thoughts.
I remember a Friday firm-purchased lunch. (They were supposed to increase moral, I suppose.) The topic at the table that particular day was “What are three dead Indians worth in Flagstaff.” Then there was the litigation department meeting where the partners asked the associates if there was anything the partners could provide the associates to make their jobs easier, to which one associate responded, “Cases with better facts?”
I like CM’s idea. But it would put a lot of experts out of business and significantly reduce the earnings of a lot of trial lawyers.
But it would put a lot of experts out of business and significantly reduce the earnings of a lot of trial lawyers.
::insert snark below::
So…it would make it cheaper to kill trial lawyers?
jk
It can be a very nasty business. But lawyers function at the intersection of competing personal and societal interests. Of course, some gleefully enhance the competition for their personal gain.