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The Language of Experts

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Caldwell_MarkOn November 19th my wife suffered a hemorrhagic stroke when a vessel in her brain ripped open. She was rushed by ambulance and then helicopter to the city’s best trauma center and has been in the Intensive Care Unit ever since. I have spent each of the past twenty-four days at her side.

At first I tried to listen and understand as the medical professionals described what was happening. I tried to use my best direct examination techniques to find out the processes they were using to care for my wife. Gradually, I found myself, like Ibn Fadlan, the protagonist in Michael Crichton’s novel, Eaters of the Dead (later turned into the movie The 13th Warrior) learning the language of the ICU through listening. I found I could speak in their language, using acronyms and technical terms that I picked up through conversations and from overhearing the discussions between the doctors on my wife’s care team.

At the end of each day I would try to explain what I had learned and the nature of the care being provided to others interested in my wife’s health. Much to my consternation I found I had to stop and translate the terms that had been used during the day. Then, it hit me like a “cosmic whack on the side of the head.” I had fallen into the same trap that we talk to lawyers about examining expert witnesses. Instead of being clear and using terms and concepts all could understand I had reverted to the technical speak of the medical staff.

Learn from my mistake for the next time you examine an expert. You will have spent hours with the expert learning the language, discussing the nuances of her report, debating the opinions of the other side’s expert, and living with the science of the expert’s field. Like me, you will have mastered the language of the expertise.

Federal Rule of Evidence 702 provides the basis and reason for expert testimony.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

The operant words in this portion of the rule are will help the trier of fact to understand the evidence or to determine a fact at issue. If you and your expert are speaking in tongues you cannot possibly help the judge or jury understand a piece of evidence or determine a fact. You may know the acronym or term being used by your witness but do not presume everyone else has any idea of the meaning.

Make your expert a teacher. While there is no need to make each person as authoritative as the witness, you do want to help them appreciate the evidence. When a unique term is used, ask the witness to help everyone understand the meaning. When using charts, diagrams or other visual representations ask for clarification and specifics. Inquire what something suggests in interpretation. Make use of that wonderful question “Why?”.  Most of all, do not flood the judge and jury with information that does not directly lead to a better understanding of the story of your case. Ask your witness to make comparisons to everyday occurrences that anyone may have experienced.

By being a thoughtful inquisitor you can truly help the trier of fact better understand the evidence or determine a fact. Having learned this lesson in a most memorable way, I can assure you it is worth the time to think through the translation of terms and concepts so people relate to the information you and your expert are sharing.

About Mark S. Caldwell

Mark S. Caldwell is NITA's Director for Specialty Programs. In this role Mr. Caldwell designs, administers and serves as an instructor for programs in bankruptcy litigation, child advocacy, and tax litigation. Other programs included under the Specialty Programs banner include NITA's work with other organizations for co-sponsored programs and many of NITA's pro bono courses. His role in NITA's pro bono efforts includes serving as Program Director for many of NITA's courses for lawyers and advocates who represent under-served communities, including Native American lay advocates, legal services lawyers, lawyers and advocates who represent those living with disabilities and the elderly, lawyers and advocates who appear in cases involving children, and lawyers who work in public service positions. In addition to his involvement in these courses, Mr. Caldwell also serves as NITA's Program Director for the Basic Trial Skills and Deposition Programs in Colorado. He is also an instructor at many of NITA's Teacher Training Programs.

2 thoughts on “The Language of Experts
  • Thank you for using a very personal experience to bring home such a poignant and important point. My prayers of healing for your wife and strength for you.

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