When should counsel use earning capacity instead of future earnings?

Use earning capacity when state law permits recovery for market-wide vocational diminution, when the plaintiff had minimal pre-injury earnings history, when they returned to work at lower pay that understates true capacity loss, or when they are not working but could perform suitable occupations. The pleadings and jury instructions should align with the measure selected.

How do vocational experts and economists work together on capacity cases?

Vocational experts identify suitable pre- and post-event occupations based on functional capacity. Economists assign dollar values using BLS/OEWS and related earnings data for those occupations. Economists should review draft vocational reports before finalizing earnings levels to ensure occupational selections are economically consistent.

Loss of Earning Capacity & Diminished Capacity

Market-based vocational impact when specific job continuation is not the damages measure.

Loss of earning capacity (also called diminished earning capacity) compensates for reduction in the plaintiff's ability to earn income in the competitive labor market. Unlike loss of future earnings tied to specific employment, capacity loss uses occupational earnings data from BLS/OEWS and related sources for pre- and post-event suitable occupations.

This measure is essential when the plaintiff cannot return to their prior career, has limited earnings history, or when actual post-injury wages do not reflect full vocational impact—for example, when a highly skilled worker takes a lower-paying job despite greater market-wide capacity loss.

Pre-event capacity is often anchored in historical earnings cross-checked with occupational data. Post-event capacity reflects medical restrictions, cognitive limitations, and vocational expert opinions on suitable employment. The economist documents SOC-aligned occupation selections and justifies earnings levels (mean, median, or percentile) without cherry-picking.

Work-life expectancy tables from recognized sources establish the loss period, with reductions when life expectancy is shortened or disability affects labor force participation. Fringe benefits and present value treatment follow the same principles as future earnings analyses.

Capacity cases generate Daubert challenges on occupation selection, labor force participation assumptions, and whether the plaintiff could work but chooses not to. Transparent methodology and vocational coordination strengthen admissibility. Network economists separate legal conclusions (which measure applies) from economic calculations.

Frequently Asked Questions

When should counsel use earning capacity instead of future earnings?: Use earning capacity when state law permits recovery for market-wide vocational diminution, when the plaintiff had minimal pre-injury earnings history, when they returned to work at lower pay that understates true capacity loss, or when they are not working but could perform suitable occupations. The pleadings and jury instructions should align with the measure selected.
How do vocational experts and economists work together on capacity cases?: Vocational experts identify suitable pre- and post-event occupations based on functional capacity. Economists assign dollar values using BLS/OEWS and related earnings data for those occupations. Economists should review draft vocational reports before finalizing earnings levels to ensure occupational selections are economically consistent.

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