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J.Hazelbaker, Attorney
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Hello. My legal question(s) of business economics are in depth

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Hello. My legal question(s) of business economics are in depth and evolves around my current med mal case. I am asking questions here because after signing a contact with my attorney he has since avoided important questions from me in regard to my med mal case. My recent questions directed to my attorney are in regard to my economic expert. Here are the nuts & bolts of my situation that will be helpful in providing answer(s) to my question(s). I have a medical “expert” and an economic “expert” so far. I have received responses back from my economic expert who was chosen by my attorney who only selected this eco expert on a recommendation and because there are local. My attorney has never used the expert’s services before. This economic expert was not my first choice. Let me say now that it is I who is banking my own med mal case, and had provided the lead for my medical expert to my attorney. I was so surgically injured (groin nerve damage) from the initial surgery that all my time (3 yrs) was spent researching my own health providers and going to multiple out-of state surgeries of which I sought to regain my health. It was myself who was able to get a 9 (J) signed to allow a 120 day extension on my 3 yr statute. Then I located an attorney to get a compliant filed just 2 weeks before my stature ran out. There is a very strong case here, but I was not in a bargaining situation and I needed an attorney quickly to get a lawsuit filed. The economic expert’s retainer fee was provider by me first just as my medical expert’s was by paying through my attorney’s office first. This payment was provided to the eco expert three months ago. In January the contact between the eco expert and myself began. It became evident that this expert had not reviewed thoroughly all my financial material previously supplied him and was making me do the heavy lifting. I am injured with a disability and have SSD approval retro back to 09-27-06. My current economic expert’s CV is extensive, but reflects a lot of work with corporate and government. I was a traveling salesman for an independent small business. The “expert” has been provided with all my financial data to figure future lost income, future lost fringe benefit, and lost future household services so to provide an analysis, deposition and trial. The opposing counsel has planned to depose me in mid March.
Here are recent responses from my economic expert. “I agree with you that your food expenses for the ~ 35 weeks that you traveled are a lost fringe benefit.
“I am not comfortable including lost heating/cooling in my analysis since we do not have figures of what those costs would have been. This is something that I believe that your attorney can have you testify to on your own.”
“-I don't think that the loss of a home office deduction is a lost fringe benefits because it was provided by the government and not your employee and because the choice to claim it was yours. Your attorney may have a different opinion.” It seemed odd that only food was a part of the expense account was allowed as a future loss fringe benefit but there was nothing else on the report (gasoline, auto repairs, cell, faxing, postage meter, misc. items) that he agreed was a lost future benefit. While on the road all my at home office (25% of my home) expenses, heating/cooling was lowered and directly reduced my personal expenses increasing thereby allowing be to keep more income. Another example is my personal auto rested for 5 days out of a week. I used my work vehicle 90& of the time. This disability the work van was sold due to medical bills and now I’m forced to use my 16 yr old personal car 100% of time when I capable of driving. My street smarts and guts told me to investigate further. So, I communicated with another person who has equal educational background (Phd) to my current eco expert and has given expert testimony similar to my situation. Also they are an economic professor at the University level. Speaking with this professor informed me that there is an opposing stance to my current economic expert decisions or outlook.
-I’m injured and everything takes more time and energy to complete including sitting to email, but I did respond to my attorney after speaking with the other educated professor. Here is some of what I wrote via email.
-The IRS deduction for business use of my home was and still is legitimate. I disagree with my expert that the government was the provider. Of course I chose to take the deduction. Home office deduction was a cost associated with my job or chosen career. I met the stipulations required to take the deduction because of my career, outside traveling sales. The ability to take this deduction was provided indirectly from my employer because I completed by job working directly from my home office. If I had not provided my own storage and office space in my own home from which I worked and traveled, my employer would have had to have rented office space for me. To my clients, I was the agency that I represented in NC & SC. My business expense account associated with my career actually was directly responsible in lower my personal financial overhead.
-If I were capable of immediately seeking gainful employment I would rebuild my career in outside sales using my house as home base of which I would again travel representing an agency or myself. In other words, I would once again expense the cost of doing business that would include gas, food, hotel, cell phone, faxing, and postage meter costs. Every outside sales job I've held (4) since 1979 offered a company vehicle and an expense account. Both the car & expense account directly lowered my personal financial overhead. Disability has forced me to lose these advantages that were associated with my career beyond just my salary and commission. I would hope my economic expert would be helpful in fully determining if it is at all possible to recapture the below associated advantages of my career in outside sales. This does not seem to be the case. The loss of my sales career will have a future detrimental effect on my finances over and beyond my future income derived from lost salary and commission.

-From an accounting or legal standpoint if one is disabled and has lost a 27 year career in outside sales would the following be a lost future income, or fringe benefit, or neither?

1) Business expense account (food, gas, misc items). I paid for all my travel business expenses with AMEX and was later reimbursed for the travel expense by my employer.

2) My monthly Auto allowance was $325.85 monthly. My ex-employer reported this allowance as a fringe benefit on my W2. I purchased my own auto in my name with my insurance. I had to sell my new at the time 2006 Ford E-350 van to pay down medical bills.

3). Home office deduction that was entered on Schedule A of which 2% of my AGI was subtracted from. My home office deduction was determined by adding my real estate taxes, insurance, repairs, maintenance, and utilities. Within the worksheet to figure the deduction for business use of my home I depreciated my home by using table A- 7a that was 2.564 % of my fair market value of my home and land (Basis of building). The ripple effect of home office deduction not possibly being a lost fringe benefit will definitely be related to my personal income loss.

The side effect of losing my career due to disability is the inability to earn a level of income that allowed me to take deductions on schedule A in order to lower my AGI. Such deductions such as line 6 real estate taxes. In Year 2005 while gainfully employed these taxes were $743 and in yr 2009 though disabled the tax jumped to $1,259.
The ripple effect of my home office deduction not possibly being able to be considered a lost fringe benefit will then definitely become personal future income losses.

-My attorney who ignores my questions has accepted my economic expert’s decisions that will affect my future economics. This is my attorney’s response to my questions. “I've read your economic expert’s responses. You can only claim losses directly resulting from lost benefits offered by your employment. I don't believe that you can claim office deduction loss at your home as a legitimate loss here.”

Because my eco expert has used terms as “ I don’t feel comfortable”, and I don’t think is unsettling and disturbing. The my attorney just reiterates “ I don’t think. However, the other professor I spoke with did not hesitant to say No that is not right. This is my future life that I fighting for. So, am seeking another opinion or direct answers here at Just Ask. Thank-you

Your attorney is not an economic expert. He is, like we all would, going to rely on the expert to determine what your economic damages are in your case.


There is nothing that prevents you from using more than one expert witness on any particular issue. If you have found an expert that you feel more comfortable working with, then you should at least have your attorney meet with the expert. While it is an additional expense, in has the potential to pay for itself in the end.


It simply does not make sense to not initially seek everything you possibly can, within reason and with logical support. If there is a reasonable argument that the elements such as the deduction should be included, then they should be include. The job of the attorney is to be a "zealous" advocate and not a conservative economist.


So, my answer to your question is very basic: make your attorney use another expert, preferably one with more experience with economic damage cases.


As far as whether you can legitimately claim the deduction, the heating/cooling, the lost expense account, the loss of use of company vehicle, etc., that depends on what your economist says. As an attorney, I depend on the expert in determining economic damages. If the expert is willing to testify to that loss with confidence and support, then it's my job to get the opinion admitted.



Please let me know, if you have follow-up questions.


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