The Vocational Expert: the underutilized resource, part 1

Jamie Charter
January 2, 2007 — 2,040 views  
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It is the intent of this article series to generate a more comprehensive understanding of the nature and scope of services offered by a vocational expert, specifically in the legal arena. Consequently, we will start by defining: what is a vocational expert? A vocational expert is a professional, whose education, training and experience includes; knowledge of client vocational evaluation methodologies, transferable skills analysis, labor market research, academic and vocational programs, determination of earning capacity and effective oral and written communication. Additionally, in the family law arena, they are required to meet the criteria outlined in Evidence Codes sections 702, 720, 730. Published vocational literature also offers the following description: " Vocational Experts possess specialized training and knowledge in the field of trades, professions and occupations, and serve in assessment and/or testimony in a litigious forum (Havraneck 1995)." Of prevalence in California, vocational experts may also have a background as vocational rehabilitation counselors. In that role, their background consists of exercising extensive knowledge and experience in medical/psychological implications of disability in training and employment matters. Therefore, these individuals not only assess an individual's earning capacity but they can also render opinions/recommendations regarding the suitability of employment and reasonable accommodations. Commonly, and most unfortunately, the utilization of a "vocational expert" tends to become a decision of desperation, far after the onset of proceedings. The parties are often at the point of exasperation and fully entrenched in their legal battles by the time the decision to secure the services of a vocational expert is made or judicially ordered. Had the expert been afforded the opportunity of early intervention and involvement, the case outcome may have been impacted in a more positive manner. Most attorneys assume that fees for vocational experts are expensive and only practical in very high income and profile matters. In the balance of cases, the temptation of creating a savings by utilizing an already retained professional expert emerges, such as an accountant, CPA, (or any other professional who is being utilized in financial matters). In turn this individual is then asked to expand his/her opinion and encompass the area of "earning capacity". This clouding of judgment renders ineffective findings, as it is not typically within the realm of their expertise to present vocational information. * Earning Capacity is defined as follows: A person's ability or power to earn money, given the person's talent, skills, training and experience. Earning capacity is one element considered when measuring the damages recoverable in a personal-injury lawsuit. And in family law, earning capacity is considered when awarding child support and spousal maintenance (or alimony) and in dividing property between spouses upon divorce. Also termed earning power. (Black's Law Dictionary, 1999) Recently, in Superior Court, a case being heard was a contested divorce proceeding, where the couple now divorcing owned several business ventures. The issues of spousal support were debated and a determination of earning capacity was needed to allow resolution of issues. Not surprisingly, the fact the businesses were either insolvent or approaching a bankruptcy status was raised by one of the parties. Hence, the testimony of the CPA was extended to cover the issues of earning capacity in this proceeding. Needless to say the Judge patiently listened to the testimony offered and disallowed this expert's findings of the spouse's earning capacity, which can only be provided by a vocational expert. The Judge cited his testimony as "anecdotal". This brief example illustrates not only the need to hire the correct qualified expert, but highlights the legal advantage of having verifiable vocational data to substantiate the legal assertions. The California Family Code sections 4320-4322 and 4330-4331 address the vocational evaluation process and qualifications of the vocational expert. These services are often misunderstood and severely underutilized. The world of work concept tends to generate confusion and bewilder many individuals, especially, when it comes to knowledge of job requirements and prevailing wages. It is an evolving and rapidly changing work world, requiring constant observation and communication. The vocational expert is academically trained to master these concepts and possesses the necessary oral and written communication skills to adequately educate the players in cases, through their expertise. Author, consultant and educator Jamie Charter has been providing employment and litigation consulting services for 23 years through Charter and Company employer resource consultants in Soquel, California. Jamie is available to assist your organization with direct service and customized training. Contact: [email protected]

Jamie Charter

Charter and Company

Jamie Charter, consultant, trainer and author, has been providing employment and litigation consulting services for 23 years through Charter and Company employment resource consultants in Soquel, California. Areas of specialization include development and implementation of disability management programs, case management, EEOC/FEHA/ADA consultation, return-to-work facilitation, CalPers job description services, job analyses, conducting training seminars for employer groups on sexual harassment prevention and discrimination and litigation /expert witness services in Forensics.