Practice Development for Medical Expert Witnesses
Beryl Vaughan, Consultant
Nationwide
Email go@forensicexpertpro.com or Call (415) 302-9589
Lawyer-Speak: Translate Medicine, Apply it to Law, Begin a Conversation with Attorneys
By Beryl Vaughan
The language of medicine applied to the needs of the legal system.
A medical expert witness can translate for attorneys the language of medicine, applied to law. Before you are even retained, show you are knowledgeable in the medicolegal space.
Explanation and Translation
Your job as an expert witness is to act as a Rosetta Stone for a Jury – explaining medical information in a legal context.
Before the Jury ever hears you, an attorney must first know you’re up to the job.
Neither the attorney nor the jury thinks or talks like a doctor, but both are essentially your students.
Attorneys will not search for you using the professional lingo of your specialty.
Amateurs Do Play Doctor
Attorneys will search using what they think is the professional lingo of your specialty.
Armchair Mentality
Mental health issues are especially at risk because armchair psychologists abound. In other medical specialties you may have better protection from misunderstandings. We don’t have “armchair orthopedic surgeons.”
If a medical term in your corner is used on TV, assume that is where the attorney has learned what they believe is the right meaning. I’m not saying they did learn medicine on TV, only that you must start with that assumption so no one is left behind when you use complex medical terms.
Marketing always begins with the perspective and vocabulary of your client.
For example, everyone thinks they know what it means to have PTSD or be depressed.
But what if the PTSD symptoms are actually an Anxiety Disorder? What if a person who is “depressed” is on the down-swing of Bipolar Depression?
Attorneys who learn something, know juries will learn something. Trials drive the litigation bus. Medicolegal experts can and do get cases when the attorney is assured you can talk to a jury without losing them in medical jargon.
Tip:
Look back at cases you’ve done.
- Did attorneys understand your report? Did they ask for rewrites? This might mean applying medical terms in lay-context. For example, compare these two sentences as used in a report.
Doctor to Doctor: “ADD in is most common in adults while ADHD is more common in children.”
Doctor to Lawyer or Doctor to Trier of Fact: “In children we are more likely to see ADHD, where the “H” is “hyperactivity.” In adults, Hyperactivity is a less common symptom, while ADD may persist.”
- What terms did lawyers use to describe your expertise in a pleading? The choice of words an attorney uses is revealing about how they view your credentials. If they get it wrong, or misunderstand your qualifications, a gentle explanation can be beneficial.
Examples
1. Compare these two sentences, used in a report. The first sentence assumes the reader knows certain medical information. The second sentence explains, without being patronizing.
Doctor to Doctor: “ADD in is most common in adults while ADHD is more common in children.”
Doctor to Lawyer or Doctor to Trier of Fact: “In children we are more likely to see ADHD, where the “H” is “hyperactivity.” In adults, Hyperactivity is a less common symptom, while ADD may persist.”
2. A client once told me they wanted cases involving head injuries. Medical terms are not always familiar in this complex field. I did not know, for example, that mTBI=m(ild)TBI (Traumatic Brain injury) is a concussion. Concussions are very different from Traumatic Brain Injuries.
The distinction between a TBI that is not mild and one that is mild could be lost on an attorney.
Solution
I recommended an article about types of brain injuries. Define TBI, define mTBI, explain what is a concussion, describe distinctions and symptoms.
Vocabulary We Look Up Online
In practice: we all begin a search for anything on Google with the words we think will produce the results we want. If the term is completely unfamiliar, we start with seeking a definition. Sometimes we guess.
Rest assured, attorneys don’t always use proper medical terminology when looking for an expert in that field.
The Attorney’s Vocabulary is The Starting Point
An example:
You are experienced in
The attorney doesn’t know much about PTSD so, of course, Googles “PTSD accident” and doesn’t find “Out-patient treatment Anxiety Disorders.” They might miss you entirely.
Data Unmasks the Disconnect
Note which sites are produced by Google. We can analyze why some results rank higher than others. This is called SEO.
Good fixes include writing about how to distinguish PTSD from other Disorders, PTSD from traumatic events, like motor vehicle accidents, subtleties
A relieved attorney now finds someone who understands what’s relevant, in spite of the attorney’s understandable lack of mental health training.
A misunderstanding between
Another example
What is “Trauma?”
Per Black’s Law Dictionary: “In medical jurisprudence….A wound; any injury to the body caused by external violence.”
Webster, “an injury (such as a wound) to living tissue caused by an extrinsic agent.”
Attorneys may identify self-described “traumatic” experiences as a cause of action in a Complaint. Who’s the right expert to opine? The doctor running an emergency room? Trauma Center standard of care expert? A hospital on-call orthopedist? A forensic psychiatrist or psychologist? You see the problem.
Because you’re building your forensic practice, writing about these types of translation disconnects will find an audience.
Don’t Confuse Someone If You Don’t Have To
Attorneys don’t want to be confused; their cases will suffer. And they may very well look for an expert using search words that don’t lead to the expertise sought.
Whenever you communicate your med-legal opinions, assume you’re talking to someone who would like to better understand the most complex elements. Don’t be patronizing–in fact, when the language gets technical, be an educator.
Talking Shop with Lawyers
Law has its vocabulary too. Reach “across the aisle” to show attorneys, you know your way around legalese.
Don’t be shy.
Don’t know a term? Ask. Why should you be the smartest person in the room, throwing around big words?
The more you learn about the workings and terminology of the lawsuit journey, the better you’ll do your job.
You will be asked to issue a pleading at some point. Be prepared.
For example, counsel is trying to block your IME of their client. The attorney who has retained you will have to file a Motion to Compel (the IME).
The Judge will need to know more about your work and methods. It’s highly likely you’ll be asked for a Declaration in Support of the Motion to Compel. You’ll need to explain your credentials and how your IME operates. You may describe methods and how they meet the Daubert
