Lawyers hire vocational experts in a variety of legal proceedings. They are commonly used in personal injury cases to prove lost earning capacity, particularly when serious or catastrophic injuries have a caused a permanent disability. The injury victim’s inability to return to a former occupation, as well as the victim’s limited ability to find new work at a comparable wage, can be proved with a combination of medical and vocational expert testimony.
In family law proceedings, vocational experts help divorcing or divorced spouses establish the income a spouse is capable of earning after a divorce. Vocational experts can also determine whether a spouse who has been ordered to pay support or maintenance is underemployed and has a greater earning capacity than current earnings reflect.
In Social Security Disability, workers’ compensation, and other proceedings where government benefits depend upon proof that an individual’s ability to earn an income has been impaired by a health condition, vocational experts offer opinions about jobs in the labor market, or the absence of such jobs, that a person with the claimant’s limitations can perform.
Vocational Experts and the Rules of Evidence
To give admissible testimony in a court proceeding, the expert must satisfy the applicable standard established by the state or federal rules of evidence. In federal court, the Daubert standard controls. Many state courts follow some version of Daubert, while others follow the Frye standard or a hybrid standard.
Courts routinely admit the testimony of vocational experts. The Daubert standard is not a barrier because vocational experts follow a standardized methodology that has been accepted as valid by other experts in the field. They gather sufficient data from a variety of sources and use that data to form reliable opinions about employability and other issues that fall within their field of expertise.
Expert testimony is only admissible, however, if the expert is qualified. In federal court, an expert may be qualified “by knowledge, skill, experience, training, or education.” State courts tend to use similar language to describe expert witness qualifications.
To determine whether a vocational expert is qualified, then, courts generally examine the expert’s knowledge, skill, experience, training, and education. Fortunately, lawyers who hire reputable vocational experts can be assured that the expert will possess the requisite qualifications.
Qualifications to Be a Vocational Expert
Vocational experts have the “knowledge, skill, experience, training, and education” to render expert opinions within their field of expertise. Vocational experts typically earn a degree with a major that relates to social services, mental health, physiology, nursing, physical therapy, rehabilitation services, or some other relevant field. Many vocational experts also have a graduate degree in a relevant field.
Vocational experts obtain professional certifications after receiving additional training that is focused on their area of expertise. For example, vocational experts might obtain a Certified Vocational Evaluation Specialist (CVE) designation or might be a member of its predecessor organization, the Professional Vocational Evaluation Registry (PVE). Vocational experts might instead obtain a Certified Rehabilitation Counselor (CRC) or a Certified Life Care Planner (CLCP) designation.
Certified specialists engage in continuing education programs to maintain their certifications. Continuing education often focuses on expert testimony, report preparation, and litigation support.
Vocational experts have a deep understanding of a variety of physical and mental disabilities. They are proficient in administering, scoring, and interpreting testing and evaluation instruments that address vocational interests, skills, and abilities, as well as psychological testing. They also have the ability to analyze medical, psychological, educational, vocational, and socioeconomic information.
The experience and training of vocational experts include the development of formal evaluation plans and the preparation of comprehensive reports. Vocational experts often have relevant work experience in counseling or support services within a school or social services agency, or in rehabilitation services provided by the medical industry.
Sources of Vocational Expert Information
The Daubert standard requires experts to base opinions upon sufficient facts in a reliable way. Vocational experts must therefore develop skills that enable them to acquire and interpret data.
Vocational experts must be familiar with functional capacity evaluations so they can pinpoint the physical and mental limitations that affect a client’s ability to work. Vocational experts need to understand and interpret medical records and any functional capacity evaluation that is contained in those records.
Vocational experts gather data during vocational evaluations by interviewing the client and family members. They also review the client’s educational history, employment history, military records, and other relevant documents to inform their opinions about a client’s employability.
Vocational experts choose the most appropriate labor market databases to assess available jobs in the workforce, as well as the physical and educational requirements that are needed to perform those skills. After performing a vocational evaluation, vocational experts rely on those databases to determine whether jobs are available that the client can perform and the wages that are typically paid in the client’s geographic area for those jobs.
Vocational experts must be able to explain why they chose to use particular databases and other sources of information when they arrived at their opinions. Experts draw upon their education, training, and experience, including their knowledge of standard practices within their field, to explain their choices.
Avoiding the “Hired Gun” Effect
Studies show that qualifications are a threshold for admissibility but do not necessarily affect a juror’s perception of an expert’s credibility. Lawyers have differing opinions about the extent to which jurors view experts as “hired guns” who slant their testimony to favor the party that pays them. Research suggests that the “hired gun effect” is most noticeable when experts are highly paid and when they testify almost exclusively for the same law firm.
Studies also show that the “hired gun effect” can be combatted. Research establishes that juries are less likely to reject experts who testify for both plaintiffs and defendants and who testify in a variety of cases. A vocational expert who testifies in divorce cases, personal injury cases, and disability cases will probably be perceived as more credible than an expert who exclusively testifies for plaintiffs or for defendants in a particular kind of case.
Studies also show that experts can overcome the “hired gun effect” by explaining their conclusions in clear terms. Juries attach credibility to experts who give testimony that jurors can easily understand, particularly when the jurors conclude that the expert’s conclusions, as explained, are a matter of common sense.