Financial Litigation Expert, Author at Financial Litigation Expert

AI: Its Greatest Impact Should Be Felt on Trust & Wills

Financial Litigation Expert on June 4, 2026

As a concerned citizen I often wonder whether AI will elevate our society, freeing us from the burdens of life or single-handedly will undermine all advancements we’ve achieved over the last 2000 years. We are all worried about how it will affect jobs for obvious reasons. I wrote a brief article entitled AI: What It Means for Future Jobs ~ One Opinion last month and circulated it to hundreds of thousands of people and it was read by more than ten thousand people. I began by analyzing Stephen Hawkins famous warning in a 2017 letter he wrote, cosigned by four others where he opined “Success in creating AI could be the biggest event in the history of our civilization,” but he went on to say “but it could also be the last – unless we learn how to avoid the risks. Alongside the benefits AI will also bring dangers like powerful autonomous weapons or new ways for the few to oppress the many”. I concluded that Mutually Assured Destruction suggested that autonomous weapons were the lesser concern. JFK nailed that in a famous speech where he spoke “we are all mortal and all breath the same air.” thereby encapsulating the MAD theory which makes us think long and hard before we act.

I had my first exposure to AI’s impact dealing with AI and its potential impact in May of 2024. The year started slowly and I was very interested in a case involving multiple trusts with one-quarter billion dollars in total assets. I acquired a previous trust matter involving a one-hundred-twenty-million dollars in assets in the same location four years earlier and had no problem securing funds to pay for my services. Here I was told that their multi-jurisdictional law firm owned AI equipment which produced a result that they intended to use at a hearing and required actuarial testimony that it was accurate. I was uncomfortable testifying to a result that I had not worked on and was asked what I was requiring in funds. I looked into the matter and determined that the law firm was misrepresenting why they needed my testimony.

The primary beneficiaries decided amongst themselves to terminate the trusts. A secondary beneficiary learned about it and decided to challenge it. As the court was not going to like what they did they wanted my testimony that this time-limited trust would end before any secondary beneficiary’s interestwould begin thereby lessening their client’s misconduct as irrelevant to the outcome. This is a frequent problem liquidating a trust instrument with multiple beneficiaries. If the grantor wanted only these two to receive the proceeds, he could have provided a simple trust instrument that would do that. But with this much money involved greed and arrogance take over. The case four years earlier involved the same issues. The law firm would argue the relevance with my supporting the AI result that it was less than one in one-million chance that because of the 20-year time limit that any secondary beneficiary would receive anything from the multiple trust funds.

This is central to how AI is going to ruin entire industries. First, there are no facts that would make the failure to disclose to all beneficiaries irrelevant. I will explain exactly why. Second, no AI equipment can determine an exact probability as theirs was alleged to have done. It is far more complicated, and its acceptance relies on just how complicated securing reliable data is. There is a job listing in LinkedIn currently from an insurance company willing to pay up to $70 per hour for government licensed actuaries to program their AI equipment. I don’t earn anything close to what I earned in the 80s when my services were in great demand. But even today I will earn $3,000 for a day’s work, not the few hundred dollars per day this insurance company will pay. But it is no coincidence that this occurs during times when reporting the truth can be a crime and there are no consumer protection anymore.

There are no empirical formulas for determining the probability of survival as apply to gambling. The probabilities for survival are based on volumes of data measured on a snapshot basis as the data is in constant flux as medical discoveries occur and demographic data is in flux with economic development. This then requires measuring multiple groups providing different probabilities based on different groups. Actuaries are taught that people lie in surveys for all different reasons and the questions we ask are asked many different ways to expose lies and unearth who is lying, tossing suspect responses. The small holes or anomalies created when small amount of data is tossed are corrected through techniques of curve smoothing or graduation. The latter is a time-testedmethod for identifying the formula reproducing the curve, which before high-speed computers was the method by which the military used for navigational purposes of our weaponry.

Now we have a reliable database that can be used to extrapolate probabilities of survival. Regardless, it should not take explaining the accuracy is extremely good only with large groups because on an individual basis people die at all ages. Thus, any kind of accuracy of results rely on its measurements to known groups. To improve upon accuracy requires extensive underwriting, which involves lifestyle, where you live, your access to medical care, and the availability of funds to pay for quality care. Therefore, to suggest accuracy to one in one million accuracy is absurd.

Then, what is the individual health status of the two primary beneficiaries as either or both may be impaired and serve as the reason why either or both want their liquidated value now. If AI were correct with its one in one million result,discovery that just one of the two primary beneficiaries is in poor health would drastically change probabilities from the near impossible one in one million result to a very unlikely one in one thousand. But if the trust were terminated given its likelihood of distribution figured into the process, a one in one million chance changes a $250 distribution to a $250,000 distribution, when one in one-thousand is used instead, which no court would consider as insignificant, explaining why a court would not likely entertain terminating it without all beneficiaries on board and all in agreement with the amount they will receive.

The wills and estate attorneys are at far greater risk of these disastrous results caused by AI because they cater to the super rich clients and don’t tell them what they need to hear. When I entered the actuarial profession actuaries were in far greater use in wills and estates because all of the valuation issues areactuarial. Today, actuaries are seldom used in this profession,and I can only speculate why. The section exploded to include middle class people few of whom can afford an actuary. What I do not pretend to understand is why rich people understand the benefits of an actuary in all areas of law except in wills and estates and I suspect it has to do with the explosion in size where many issues deal with middle class people. But that change leaves you vulnerable where false promises are more easily believed. Yet the only time I was ever faced with an expert who charged double what I charged followed the explicit instructionsof how he should do his work written on the attorney’s stationery. I expected his testimony to be excluded as bought and not independent.

Steven Hawkins, a world-renowned applied mathematician and physicist, may have fancied science fiction movies and the books behind them as so many mathematicians do. One of the best science fiction movies of all time was Forbidden Planet, released in 1956 . There was no book upon which the movie was based but the product of the creative screen writing from Allen Adler & Irving Block, who wrote the film story that was used by Cyril Hume, who wrote the movie script.

The movie was about: read here for the crucial details. Or you could proceed to read this latter if you need more information about the movie in order to understand some of the conclusions I reached.

The 50s saw a deluge of science fiction movies dealing with monsters created by atomic radiation after atomic bombs were dropped on Hiroshima and Nagasaki. This was the most horrible thing known to civilization. The last 75 years taught us that the fear of nuclear holocaust is universal and so far is preventing its use in war again. The Great Depression caused the worst suffering of the last several centuries and was universally felt across the globe. Unlike a pandemic which nature cause, man creates economic collapse from his uncontrolled lust for money and power. Society only remembers it a very short time and we never seem to learn from our mistakes. The very rich are getting much richer and society refuses to restrain their worst impulses of unrestrained greed and power. This is why I do not believe our greatest fear should be with autonomous weapons, because like President Kennedy spoke, we are all mortal and we all breathe the same air. Even the super wealthy understand that. But society taught the super-rich that they are too rich to fail, which only reinforced what they believed anyway (see City Group Worldwide, Plutonomy Reports, (Oct. 2005) and they operate with that belief. That is why AI will destroy our society.

If Trump had been president when Obama was in 2009 the Great Recession would have been worse than 1929. He would have been totally unrestrained. His Republican Congress knew after the Smoot Hawley Act was enacted in 1930 you don’t depress trade with a massive Tarriff Act during a depression. It deepens a severe recession into a massive depression. That is what we learned from 1930 and why Bush asked Congress for nearly a trillion dollars to establish a floor underneath to support the failing economy from total collapse instead of leaving the mess for the incoming administration to deal with. And Trump’s reckless stewardship began just two years after the economy was booming where he totally dismantled the protections enacted to stave off another economic collapse the first two years Obama’s stewardship began. Apparently, he didn’t get the same message from Richard Nixon, as George Bush did, when Nixon justified his spending to boost the economy after the Vietnam War ended with comments like these days we all are Keynesian Economists.

AI: What it Means for Future Jobs?

Financial Litigation Expert on May 19, 2026

I wonder how many people have gotten over Biden’s inflation now faced with the inability to pay for food and housing. This is front and center and on everyone’s mind. When recently asked about his campaign promises to improve people’s lives and reduce the high cost of living,Trump pointed to two things: (1) the current stock market result and (2) the enormously high use of credit cards by working people to argue his economy is kicking.

When one looks deeper into both 55% of Americans polled say they cannot provide basic necessities such as feeding themselves or paying their housing costs or more recently gasoline for their automobile so they can go to work. Americans are simply using their credit cards to stay afloat. This lasts only as long as financial institutions allow them to get further into debt. This therefore shows just the opposite of a good economy. Looking still deeper into the market results, AI stocks and other related stocks are carrying almost the entire stock market.

Stephen Hawkins was famously quoted with “Success in creating AI could be the biggest event in the history of our civilization,” but he went on to say “but it could also be the last – unless we learn how to avoid the risks. Alongside the benefits AI will also bring dangers like powerful autonomous weapons or new ways for the few to oppress the many”.

History is replete with people always ignoring powerful warnings when huge sums of money are involved. People that should know better turn a blind eye when their money is at risk. It’s absolutely incredulous looking back that Elon Musk signed the same letter in 2017 that Stephen Hawkins signed warning us about the heavy risks of AI and Musk explained that people could introduce AI to autos before properly vetting it for safety and wouldn’t you know he was right and quite a few of the people that bought his Tessler cars lost their lives when their cars crashed unexpectedly. He betrayed his own warning, and it was reported in the news that Musk and Biden had a falling out over when his Tessler cars created great liability for him that Biden refused to help him with it.

Does anyone question whether AI will cause massive job loss? The super wealthy have always believed that they themselves can be the economy. City Group Worldwide sent a report approximately 80 pages in length to its best customers in October of 2005, tagged the plutonomy reportsexplicitly stating that not since 1929 has the separation of wealth been so great, allegedly disproving it had anything to do with the Great Depression. I obtained it back then and read and studied its findings. The economic imbalance started it back then and protectionist tariffs allowed it to brew the next four years and get far worse. We are a consumer-oriented economy and if the great consumers are left without money the corporations that built their power on that buying power will collapse. It’s that simple.

Pete Hegseth sunk a boat that departed from Venezuela allegedly carrying drugs after our military disabled it. Trump defended the action arguing it was carrying drugs. In fact, that was the whole rationale for invading Venezuela. The date of that incident was September 1, 2025, and was reported in the news on September 2^nd. If he was so concerned about drugs entering this country, why did he pardon former president Juan Orlando Hernandez, who was convicted and sentenced for 45 years in prison for some of the most egregious drug trafficking. That killed so many Americans kids, and he pardoned him exactly 90 days after he defended the military sinking a disabled boat, in effect murdering them, on the basis they posed great danger to our kids by bringing drugs into this country. To me, this is compelling evidence that there is no chance we will responsibly regulate AI when all of our national policy is over protecting the billionaire class over whatever illegal activity they choose to do to make a fortune or whatever wars they start for our national defense. History makes a compelling statement that MAD (mutually assured destruction ) made us more responsible with nukes than we are protecting the economy and AI would invariably lead to the end of civilization as Stephen Hawkins continued to warn about until his death.

As for me, I see far more dangers in store for us with AI than benefits from it and the best protection from it is to compete with it. People are being seduced by the benefits. In the end AI is all about promoting greed for the billionaire class. It’s how the very few can excite us about helping them ruin our lives. It will be used by the very few to dominate over the many as Hawkins also warned us about. Think about that the next time you spend an hour trying to navigate an AI menu solely to get information before buying. Spend a little more and buy local. Boycott the billionaire who doesn’t respect you enough, or your business to have their employees speak with you. There will always be a market for catering to their customers. People want to feel that their business is appreciated. If enough resistance keeps an alternate economy alive there’s a slight chance that we just may slow things down enough that we learn to act responsibly before it eliminates mankind itself as Hawkins spent the final years warning us about.

Breach of Contract: Why Use an Expert

Financial Litigation Expert on May 18, 2026

This is fundamental to any lawsuit where your goal is compensation. Let’s break this down between four basic classifications: (1) When you are suing and your lawyer is paid 40% of what you win, plus his out-of-pocket expenses, called shared winnings. (2) You provided a substantial portion of your lawyer’s upfront expenses on top of shared winnings (3) Your insurance company retained a lawyer to defend its exposure. (4) you retained an attorney to defend your exposure. I will explain why you need an expert in each of these four classifications. I will also explain what message you are sending to the other side when you don’t have one. I will also explain what your lawyer thinks about the strength of your case if he hasn’t advised you to get one; and how it affects your winnings when you don’t. We will address the issues as it relates to defense as well.

ARE ALL BONUSES MARITAL PROPERTY?

Financial Litigation Expert on May 3, 2026

This is a complex question. The answer depends on when the bonus was awarded and what effort is required before the bonus is paid. In some instances the bonus may be based on past and future effort. Effort is either incidental to the award, directly tied to the award or tangential to the award. The only effort that causes the award is directly tied to the award, as the first and last effort is considered passively earned. Very few attorneys and very few experts understand this. Therefore, you chance for a successful outcome depends not just on whether the facts and law support the conclusion, but the ability to make that presentation to the court because judges are lawyers and few judges understand this as well. Read here https://www.floridabar.org/news/tfb-journal/?durl=/DIVCOM/JN/jnjournal01.nsf/Articles/6852FDEBC8F7768685257EEB004DAC25

In order to understand tangential effort, I wrote in the initial brief for 4th DCA O’Neill that I didn’t care what level of effort was shown in earning the appreciation if the same result could have been achieved with little or no effort, the effort did not cause the growth. The 4th DCA agreed and changed long-standing law on the subject. Therefore, the effort is not responsible for the growth, but is tangential to the growth. While it is very different from little or no effort it is nonetheless not responsible for the growth. O’Neill v. O’Neill, 858 So.2d 3 (Fla. 4th DCA 2004)

Sometimes effort is is neither passive nor direct, but is interdependent on other effort, where the two are not mutually exclusive but equally contribute to the result. Each interval of measured effort has direct effort causing the growth. All growth is then built on a foundation of efforts. Most pension plan rulings in the US recognize the foundation of efforts apply to pension plans, thereby allowing the non-employee spouse share in some form of salary increase after the parties divorce. The Florida Supreme Court recognized a foundation of efforts ruling in Boyett v. Boyett, 703 So.2d 461 (Fla. 1997) that the benefit earned should not be discounted for early retirement when the participant didn’t have that reduction apply, thereby finding certain early retirement subsidies are marital property. That ruling was a significant win on one of the two issues raised on appeal. That was the first appellate brief I wrote and it cannot apply to early retirement subsidies without applying to the primary benefit (which was lost). That is why Florida is the only state in the country with such a convoluted ruling. That should have been argued in oral argument and wasn’t. I am not an attorney so I can not do oral argument.

All four efforts are the only efforts recognized in family law showing just how complicated classification of a bonus can be. Not making the right arguments will result in an unfair property division.

The Contract Right of Value

Financial Litigation Expert on April 25, 2026

Estates involving trusts often involve complicated financial instruments and terms that define them. Beneficiaries have rights to their proceeds governed by the terms of the estate trusts and state law. Disputes can result from the administration of these trusts or on issues involving disputes over entitlement and there can be many reasons involved and the court is asked to resolve them. What surprises me is this area of law can and often involve large sums of money, yet trust attorneys understand rights from governing trusts and appears less interested in the value of the rights the litigation expert deals with. That may be because the beneficiaries were not their initial clients when their estates were created and their initial clients were more interested in different goals than just value. The values needed to administer the estate are often defined for administrative and simplicity in the IRS Code. But when used for enforcement of rights in a court of law these rights are valued under a contract right of value. Contract right of value always uses facts, the legal trust that governs their disposition and apply state law to facts to determine their value.

When value is used in the administration of state trusts simplicity and uniformity are essential. The county appraiser uses defined value to assess property tax in the same way the IRS uses defined value to assess an income tax. Real value is determined with market forces, when such market exists. And the market has to identify a willing buyer and a willing seller. That is an IRS term that only applies for court purposes when market forces are at work. But the IRS especially understands that risk plays a huge part in value. But assets can have several different values and each of them is real and is driven by its purpose for seeking them, the codes, statutes and rules that govern them. In the world of finance, a transaction that triggers a debt creates a corresponding asset for the person that holds the promise to pay, the invoice or the note. This is where some confusion arises in this modern world of finance.

A debt can be liquidated in one clean transaction involving money. This gets back to basic concepts like the IRS market value. But it can often involve risk, which takes the same market value and allows the money to purchase much more assets and leverage it to increase wealth. and these can be accomplished with simple instruments, such as loans and annuities. But as financial instruments get more complex the risk becomes less understood by the public and favor the person, the corporation or institution that can take the risk and can easily violate principles of fairness, regulations or laws to prevent fraud. The latter three are just looked at as different forms of risk. The strategy can backfire and create a windfall for the borrower when the greedy institutions underwrite the untrustworthy for the loan. When repayment is involved, the debt is leveraged with a higher rate of return, if in fact realized can halve its liquidation value by using that simple fact. The same asset measured with risk changes in value and sometimes substantially. But that works only when the buyer or seller wants to engage in risk, or when the buyer has identified a larger buyer of risk, which could be a very large insurance company that sells reinsurance or a large corporation that sells derivatives.

Yet in the real world that happens with more than just money. We are taught in grade school that the shortest distance between two points is a straight line. I could get into complex scientific issues that would challenge that. We don’t have to. There are an abundant number of examples to show this is one observation that appears to be a law of nature, but that appearance is all it is: an assumption. Let’s suppose that you are a city manager, and you have to determine how many fire stations your city needs and where to build them. Both are determined by an ellipse with two equidistant focal points. But it draws a much different area than a normal ellipse does because it changes that shortest distance concept to the sum of vertical and horizontal blocks in city street geometry, where blocks are constant in measured feet. That is because the shortest distance is no longer a straight line but the sum of horizontal and vertical lines to get there on account the fact that cities have commercial real estate on each city block that prevent fire trucks travelling through buildings.

Arithmetic itself uses ten as its base. Everything in arithmetic is based on 10. The only reason for it was when all we could do was count we used our fingers. Had chickens been the predominant species, we would count on our toes 1, 2, 3, …6, 10 and memorized our multiplication tables only with numbers, 1 through 6, where then what’s natural would be based on a lifetime of different learned experiences

Because the stated purpose of this blog is to help the consumer navigate through the waters of litigation, when the issue is enforcement of rights, enforcement of rights has a contract right of value, and part of that enforcement process involves determining the value of the rights so the court can sort out how it can best deal with the disagreement. Each post will deal with different issues giving rise to litigation. It is an area fraught with problems because the estate attorney designs estates to please the benefactor, but the litigation is between those alive after the death of the benefactor.

Please share your comments or questions below. Stay on the topic of the post. Any ideas you’d like to see addressed use the link to write me.

Choosing An Attorney Right for You

Financial Litigation Expert on April 25, 2026

Family Law is often thought of as the most uncomplicated area of the law any lawyer can do. Too many clients believe that. That common opinion couldn’t be further from the truth. The harm that does to your case is exacerbated when too many lawyers believe that as well. Only a few hundred are really good out of at least five thousand who practice it full time; and of that number only 25 to 50 may be right for you. And this would be true in the big population states like California, N.Y., Florida and Texas and the number would be proportionately less in the smaller population centers.

There are many reasons for this. One reason is that very few cases will be tried. Settling the case involves as much skill as trying it. And unless enough cases are tried by that attorney, your lawyer’s ability to settle for a fair settlement is greatly diminished. Lawyers frequently exaggerate about their experience, and you must have reliable information to make a good choice. The chances improve with a recommendation, and too few are qualified to recommend the right attorney for you.

This discussion is aimed at spouses with significant assets to divide, referred to as high end; but even spouses in smaller cases can gain insight reading this post. A bad choice can cost megabucks. And because these high-end clients understand these high-end lawyers are not inexpensive, they generally make better choices. Yet most do not make the best choice for themselves. The quality of their choices depends on a number of factors, including understanding of what choices in the methods of litigation they have, their strong and weak points and how it relates to the type of assets they have that require division.

An asset may have started out as non-marital but transmuted into marital property either by commingling it with marital funds or marital labor. When that occurs, it must be determined whether the funds can be separated into marital and non-marital components, which when it can it requires considerable labor applying several different state statutes. This may be related to proving whether both spouses have access to the funds. But when the funds sit inside a jointly titled account it seldom can be separated because that involves overcoming a presumption of an interspousal gift that can be successful only in the rarest of circumstances.

Employer loans that involve notes can be entirely forgivable and are used by brokerage and investment firms to pay their best producers and do create marital property, even when technically they must be paid back. These loans can be millions of dollars. They are structured with a separate bonus schedule that automatically repays the note as each payment falls due, provided that the employee continues to work for the employer.

Bonuses paid as loans are far better for the employee going through a divorce because the entire bonus can be accessed on the first day the loan proceeds are received but they create no marital property in the first year. That means that they have complete access to the entire proceeds when received and do not pay a dime in taxes then. They pay taxes on the bonuses that repay the loan as received. The loan contract is like any loan contract that is indistinguishable from one that creates real loan liability.

The bonus contract appears like any bonus contract that pays bonuses upon satisfaction with the terms or benchmarks set forth in the bonus contract. It requires fully reading the bonus contract before noticing that there are peculiar things about this contract that distinguish this from the normal bonus contract. First there is no bonus paid in the first year. The normal bonus schedule pays the highest bonus amount in the first year. When the bonus is paid beyond one year, its purpose is to incentivize high quality future work, and to do that the bonus is conditioned on benchmarks met.

There are also two additional provisions that make this bonus schedule like no other. It provides an acceleration clause that commutes the entire future bonus schedule to a single sum value in the event of the employee’s death or determination of permanent disability. Nothing in the note contract makes it look different than any other note contract other than the note becomes due in full the point of the employee’s death or permanent disability. Each separate contract lends no clue to its objective. But each contract provision of the acceleration clause on death or disability is identical suggesting that these two separate contracts were meant as one and were probably fashioned this way to conceal their purpose.

As with two separate contracts, they don’t reveal that their secondary purpose is to minimize the tax exposure as an additional benefit while they retain these high performers working for the company. But it actually can chase them away unless the employer provides another loan/ bonus before the first one is repaid. In the late stage of repaying the loan payments that is when the highest bonuses are received and when most of the note’s balance is repaid. Most of the loan proceeds are long ago spent and all the employee is really receiving is their commissioned income, but much of the commissioned income is eaten up by the extra taxes on the bonuses that directly pay the loan. The employee really feels the pain and will seek reduction in their support payments. When the loan is initiated that represents a tremendous increase in ability to pay seldom recognized by the family law attorney. It should never be used to provide downward modification but getting the right result requires attorney understanding and explaining the transaction to the court. Yet this problem is very real for the employer that still has an unpaid balance knowing their employee is looking to change jobs in order to get a signing bonus.

Their current employers wouldn’t be in this bind if they provided most of the bonus upfront, the way bonuses traditionally are paid. If the readers are left clueless about why, they didn’t, recall what had transpired on October 3, 2008. The stock market crashed and was still in freefall. George W. Bush signed into law that day the Emergency Economic Stabilization Act that provided an $800 billion floor to Wall Street. Part of that Act created rules providing who could access the funds and how they could be used. That section of the Oct 3rd Act was known as the Troubled Assets Relief Protection, “TARP,” which forbade one dime of this money used to pay Wall Street’s biggest producers regarded mostly responsible for the economic instability while American workers were starving. Yet billions of dollars were used to pay bonuses as loans to Wall Street’s top producers and no required reporting would reveal this. These were not paid out December 31, 2008, as a bonus would but in the beginning of 2009 just when loans to help people hurting would be paid.

This closes out this first post. There will be many more posts dealing with different issues involving huge bonuses. Like the forgivable note they involve complex financial concepts and the attorney dividing them does not understand them. Sometimes that misunderstanding favors the employee, and sometimes it favors the spouse. Lack of understanding does not favor either side. But a windfall to one hurts the other side.

Any suggested topics you want to see covered drop me a note with the links provided on this page. At the end is a comment where you can leave a comment or ask a question related to this section. If you need help with your case, use the links to contact me.

Suing The Federal Government for Illegal Termination

Financial Litigation Expert on April 25, 2026

I chose this topic because so many long-term employees were fired for retaliation and/or they were older and/or they were more costly employees to maintain. This is illegal conduct and because federal administrative law requires the federal department already found guilty of discrimination by a jury with furnishing a list of damages based on its findings does not mean that their position has any priority over what must be paid. It does work against the employee’s interest if they don’t hire their own expert because the federal government uses a shotgun method that is not properly structured and the government methodology helps them deflect away from the real value of damages when the plaintiff resorts to attacking their methodology. It will show the weakness in the government’s argument. But that won’t help establish all the damage “to restore the employee to the place he was before the illegal firing.” This is central to the plaintiff’s damages report. Pollard, 532 US 833 Employment Law is by far the most structured area of law and as such clearly identifies what damages can be won and what cannot be won but that requires the expert to know the extensive case law dealing with each.

Trying to attack theirs is a wasted effort because to find the restoral point in the “Make Whole Policy” one must identify where that begins in terms of its history. There could not be a better example than Williams v. Pharmacia, `137 F.3d 944 (7th Cir. 1998) to demonstrate why “the follow the money requirement” is inherent in the Make Whole Policy and manifestly is opposite to the shotgun approach the federal government uses after it has been found guilty by a jury. One thing routinely dismissed is when the new company has identical benefits there is still a significant front pay loss with benefits because retirement and welfare benefits base amounts on prior service, but no new identical benefit plan recognizes prior service worked at the federal government the employee was fired from, only theirs. Thus with vacation pay, a welfare benefit, it has a foundational piece when the amount of vacation time is conditioned with the full years worked.

This is a foundational component of front pay when worked in the future; but because it is permanently lost upon the firing it is lost in every forward-looking front pay amount and it is structurally included in back pay inasmuch as it is part of the back pay loss when the court fails to order reinstatement of the job. Normally, vacation pay is part of w-2 pay, so it seldom is a front pay loss. The only difference is one doesn’t have to work vacation time to receive the pay, but if the employee did it is a perk that is earned and owed. But because of this it could only be back pay and a very unsubstantial portion of the back pay loss. The foundational part of back pay is the only substantial portion of back pay loss when it is step rated which is a principal feature of government plans and almost always overlooked because most experts are not structured in their thinking and often use a shotgun approach themselves.

For purposes of demonstration government benefits can provide up to four weeks of vacation pay. Suppose an employee can receive two weeks for less than ten years of employment, 3 weeks for more than 10 but less than 20 and four weeks over 20. Suppose the worker was a lawyer making $200,000 per year and was targeted by Trump for political retribution. He or she was let go after 14 years of employment. From these facts, assumptions based on the employee’s history of employment (satisfying current circumstances, an evidentiary basis, in addition to a “highly likely basis” that these assumptions will be met) are formulated to determine a loss of $140,000 on the weeks of vacation pay lost even if he found a job replacing this even though the replacement job offers identical vacation benefits.

Finding 29 weeks of foundational pay included in the $140,000 loss is the equivalent to more than 8 years of front pay and close to half of that was already counted in back pay. The court would have to order 15 years of front pay before the lost front pay vacation loss equaled the back pay loss and that is based on the new job not providing over two weeks of vacation pay. That is just how significant that 29- week loss is. FERS Retirement benefits are determined at retirement with the pay at retirement. The case law has consistently concluded that the Make Whole Policy of restoring one to before the injury that no provision that applied before changed because the employee has not been restored and the government has been enriched by its illegal conduct. Restoring means his 14 years of benefit is measured at age 62, his retirement age. No company that offers a FERS Type benefit will pay the amount he would have gotten based on his salary at retirement because the first 14 years wasn’t worked at the new company. That is why this is a foundational benefit lost as part of back pay when the federal court didn’t order reinstatement.

In similar type issues the federal government has defended on basis projecting the future involves speculation, the appellate court rejected that and ruled market earning attach to thrift savings plan contributions and it is arrived at using assumptions exactly as laid out for valuing future vacation foundational component, which is what the court requires to uphold that calculation. Once that amount is determined the government deposits the value to the employee deposits deducted from back pay (to enjoy the earnings on the after taxes amount inside their plan.) If when he had 14 years of service, he was 42 years of age that would mean his earnings will have 20 years to grow. When 14 years of retirement benefit is recalculated after 20 years of salary increases it adds $14,000 pension increase based 40 years of history. It adds at least $163,000 to back pay based solely on FERS foundational increases permanently lost when the court fails to order reinstatement. The foundation increases alone it adds $303,000 to backpay.

To be clear, no one is stating that he earned more than $2,400 per year on the date he is fired. If the termination was for cause, that is all he would get. If he voluntarily quits his job that is all he will get. To be entitled to retirement benefits you have to work until retirement. Anything less is a deferred vested benefit. The employer cannot choose to instead pay a deferred vested benefit unless the employee voluntarily quits. The Make Whole Policy requires restoring him to the place he was before he was illegally terminated. It was his choice to continue to work and get the full 14-year benefit. It was a vested right of his. To find otherwise, the government can halve their liability by the illegal firing. This precise issue was challenged in Florida in 2013 when the state was challenged whether it could reduce the benefit formula or any of its features under Fla. Stat 121.011(d)(3), its vesting statute adopted in 1974, which follows precisely the federal statute. The Florida Supreme Court ruled that nothing inherent in the state statute prevented FRS from reducing or even eliminating future earnings; but the vesting statute prevented cutting back earnings that used salaries at retirement because they were vested. Thus, even though they would pay the lesser amount if he quits, the state could not eliminate ongoing liability for the future growth based on salary increases. Scott v. Williams, 107 So.3d 379 (Fla. 2013). Depriving him of his full years of benefit prevents him from achieving full recovery and rewards the federal government for its illegal conduct.

While the employee is not owed money for contributions that weren’t made to his thrift plan both the employer match and actual earnings attach to both. Both are determined based on history involving the employee. Both are determined based on history involving the employee, thereby satisfying both the evidentiary requirement and that assumptions require current circumstances be met in addition to a blended history incorporating time as an employee and time post separation for the earnings component. The government continues to ignore case law which means the hired expert must know the case law.

Ordinarily one overlooks future earnings if the court ordered reinstatement. But that doesn’t mean there are back pay issues dating from the illegal firing to the time the case is tried. Reinstatement only means the fired employee gets the job back. All foundational issues disappear and it would appear there should be no entitlement to front pay. Front pay should only be used to restore the employee to the place he was before the firing. It does not guarantee future employment. The person reinstated still faces an uncertain job market. Major economic downturn leads to major job loss. and when the afflicted is much older permanent loss of the job. An assumption is not speculative if there is an evidentiary basis supporting it and if it uses assumptions based on current circumstances. Knowing how to structure that depends on knowing plenty of case law, where the law is a huge component of money damages.

It sets up a proper structure for measuring that and ensures one doesn’t double-count or miss a large damage payment only because the court could not find it without engaging in speculation. Finally, after every damage has been properly measured, reinstatement does not protect for reputational damage, which occurs as loss with that economic downturn, or simply when one wants to change jobs. Reinstated or not the hole in the resume resurfaces when either occurs and it makes it much less likely that replacement work will be found. Pharmacia, supra. Because there are multiple issues involved it is a front-damage not a front pay issue because front pay isn’t always taken to retirement. Reputational damage often exceeds the amount of front pay to retirement because high-paid government workers will leave government service to take on much higher paying jobs in the private industry as they get closer to the earlier government retirement age. A simple demonstration will use up the entire amount permissible, which is a non-pecuniary loss and subject to the cap congress placed on it.

This closes out part 1 of this post. There will be several more before this topic is closed. After that we’ll close the topic. There are so many different damages topics to cover so that the plaintiff and defendant know what to expect. Up until the present time I’ve been an expert equally on both sides about 50/50. Neither side seems to know the structure of damages or any of the case law required for a successful outcome.

Any suggested topics you wish to see use the links provided to write to me. Pease leave comments or ask questions but stay on this topic so we can all benefit by this discussion.