Category Archives: Professional Malpractice Litigation

May 8, 2017

Rely on Standard Practice

By Dr. Ken Broda-Bahm: 

Routine
At a recent witness preparation meeting, the doctor-defendant sat struggling to recall the details of an informed consent discussion she had with the plaintiff. “I think I told him…” she began, before finishing the statement with, “…Do you know how many patients I see? I really cannot remember.” The medical record reflected that there was indeed a discussion on risks, but the notes were not specific enough to answer the key question we expected from plaintiff’s counsel: Did the discussion cover the specific complication that actually occurred? Sensing that the doctor was about to resign herself to an, “I don’t know,” I asked, “Well, in cases like this, what do you usually talk about with patients?” And, without much effort, she reenacted that discussion and included the key warning. “Okay then,” I said, “Why don’t you say that?” She explained that, because it wasn’t in the record and because she didn’t have a specific recollection of this discussion, it did not seem like that would be credible. “It’s probably more credible,” I responded, “because it is what you say in every case, and not just in this case.” 

The solution when records and specific recollection fail is to rely on pattern and practice — not the pattern and practice evidence that can be admissible as evidence of bad faith or pretext in, for example, an employment suit, but rather the pattern and practice that serves as credible evidence of our habits. Relying on these standard practices isn’t just good advice for doctors, but can also serve as a reliable basis of testimony in other contexts: in fleshing out a product development story, or in describing the norms of your communication about a contract, for example. In each case, the witness who does not recall a specific interaction and cannot point to specific documentation about that interaction is not out of ammunition. Instead, the witness can answer by saying, “My standard practice in situations like this is to…” And rather than being a consolation prize, next-best sort of answer, that use of what is typical can turn out to be highly credible in practice. In this post, I’ll share my thoughts on why that is the case, and how pattern and practice can be put to the best use. 

How Do You Know What You Know? 

It is part of my standard advice in witness preparation meetings that there are three ways that we know what we know. Let’s say someone asked me what I had for breakfast the Tuesday before last. I might remember because something unique happened that day: My dog escaped from the yard, and I recall having to set aside my grapefruit to go bring her back in. So, we could recall because there is an independent recollection. Or, perhaps I was traveling that day and I have a receipt that identifies it as “grapefruit.” That’s the second way: documentation. Or, maybe I always have a grapefruit for breakfast, so I know without specifically recalling or without looking anything up what I ate on that particular day. That is pattern and practice, the third way of knowing. 

I tell my witnesses to just think of this as a filing cabinet with three different drawers. Each one is fine to use in testimony as long as you make clear which drawer you are drawing from and you don’t mix up the content: Don’t say you independently recall something if you’re really just relying on your notes or your pattern and practice. But do treat those other sources of knowledge as potentially just as good as independent recollection — or maybe even better. 

Why Might Pattern and Practice Testimony Be the Most Credible? 

Legally, of course, the case focuses only on the plaintiff. Yet there are some common sense reasons why information that extends beyond the individual plaintiff is often going to be more meaningful and more memorable. The modern Reptile approach to persuasion used by plaintiffs’ attorneys, for example, is dedicated to the idea of framing the case so it is a statement about the whole community and not just the individual plaintiff. It is also to be expected that jurors will focus more on what one always or typically does, rather than on what one does in one specific instance, in forming an overall assessment of credibility and merit. 

The advantage of pattern and practice testimony is that it extends beyond the individual plaintiff and speaks to what is true in most or all cases. It isn’t based on a single-claimed memory, or on a document that might not be perfect or complete, but is instead based on knowledge of what is true all the time. 

How to Make the Most of Pattern and Practice? 

As with all aspects of witness testimony, the first piece of advice is to make it honest. Practically speaking, if you say you always do something and you don’t, then the impeachment will be both easy and devastating. In some cases, the pattern and practice is what is generally or typically true, without being always and absolutely true. In those cases, I believe it is still useful to rely on your pattern and practice, using the “preponderance” standard as a rough guide.

In these cases, ideally, there will be some explanation for when that pattern and practice does not apply. In other words, it isn’t random: The circumstances when the doctor does not conduct an informed consent discussion, for example, is limited to just those circumstances where the patient either has already consented or cannot consent (because he or she is unconscious), and those circumstances were not present in this case. 

Ultimately, the witness’s description of pattern and practice is something that should be worked out during witness preparation: It should be as honest, as complete, and as detailed as possible. 

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Other Posts on Witness Recollection: 

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Image Credit: 123rf.com, used under license

February 4, 2016

Be Realistic About Hypothetical Questions: Four Ways to Answer

By Dr. Ken Broda-Bahm: 

What if

A popular focus in the polling for the presidential race right now is to ask about the various potential general election match-ups: What if it was Clinton versus Trump? Or Sanders versus Cruz? Clinton versus Rubio? Sanders versus Bush? As often as we hear that kind of data, professional pollsters will tell you that these kinds of questions, at this stage at least, have virtually no predictive power. The problem is that the question is based on a hypothetical “What if…” scenario. People have enough trouble self-reporting their attitudes in the relatively static context of current conditions. Add in the hypothetical scenario and you are also adding in a number of other unknowns: For example, what kind of amazing turnaround (or spectacular collapse in the other candidates) would have catapulted Bush to the GOP nomination? If the Democrats end up with Sanders, will that be because he effectively courted and converted the establishment wing, or will it be because his progressive wing overpowered the establishment? Our preference in any of these match-ups would be shaped by the events leading up to it. Or, more simply, the hypothetical match-up question posits a future situation that we just have not had a chance to think about or to get used to. Respondents can and will give an answer, but the answer isn’t terribly reliable.

The problems with hypothetical questions apply to litigation as well. Particularly when taking depositions, attorneys will want to get a witness to weigh in on a hypothetical scenario. The physician-deponent, for example, might be asked what they would do if a patient presented with symptoms A, B, and C. That can be an attractive question for the attorney because it secures agreement at a very general level, and that general answer can then be mapped against the more specific facts of the case. The attorney can also use the hypothetical question in order to get around an argument at another level: They can set aside for the moment the physician’s belief that the patient in question lacked symptom B, for example. The hypothetical questioning style can be tricky for the witness, though. Prepared to talk about the facts, witnesses can instead find themselves in a world removed from those facts, and being led along by just providing the seemingly obvious or easy answers can lead to trouble. This post will share four ideas on handling the hypothetical question.

No witness benefits from a scripted approach on any question or type of question. But all witnesses benefit from having a tool box of sorts to draw from when faced with these kinds of questions. Not every item in the toolbox will apply to every question, but some general familiarity with each will keep the witness in good shape, able to answer honestly without being played. Here are four tools:

1. Acknowledge the Hypothetical

The record can sometimes get fuzzy on the question of whether we are talking hypothetically or talking about the actual facts. That confusion is sometimes unintentional, and sometimes a product of the attorney’s attempts to use the hypothetical to make a point on the actual facts. For the witness, it helps to keep the context clear by beginning the answer with, “In that hypothetical situation…” or “That was not the case, but if it was…” Explicitly referencing the hypothetical nature of the question also serves as a reminder-to-self, for the witness, a way to keep the limits of the question in mind.

2. Call Out the Missing Information

The hypothetical is a partial world with some details included and other details unmentioned. Knowing that the patient “had a headache,” would tell you one thing, but not the persistence, the severity, or the myriad other symptoms that would accompany that patient’s presentation. A first line of defense against hypotheticals is to point out that only part of the picture is filled in at this point. Useful phrases to rely on would be, “It depends,” or “Not necessarily.” Don’t give these responses too lightly thought, as you could expect an “It depends on what?” as the attorney’s next question. So you can also answer, “I would need to know X, Y, or Z.” If that necessary context isn’t provided, then the witness can very reasonably answer, “I could not answer that without speculating.”

3. If You Can, Answer It As a Hypothetical

The witness won’t always be able to give a fair or complete answer to a hypothetical question (and when they cannot, they should say so). But when they can answer a hypothetical on its own terms, they should go ahead and do so. Disclaimers, like “Generally” or “Based only on that limited description,” can be added in order to avoid the overbroad concession. But within that hypothetical box, if a known and reasonable answer is evident, then avoiding it isn’t typically worth creating the impression of an evasive witness.

4. Pivot Back to the Facts

Even when the question is hypothetical, it sometimes helps to pivot your answer back to the non-hypothetical facts of your case. For example, if the attorney asked about “A patient who makes repeated complaints of severe neck pain,” the physician witness could reply that “Those complaints would obviously be taken into account, but in this case, the charts and the admitting questionnaire show no such complaints.” Responding in that way requires some anticipation of the opposing counsel’s purpose. It requires understanding that the only reason counsel would ask about the hypothetical is in order to draw a connection to the real. And if the attorney plans to go there, then it can be effective for a smart witness to just go there first.

One way of looking at it is that in a testimonial context, no question is ever really hypothetical: Its only relevance is to make a point on the actual facts. So the hypothetical question is another setting where it makes sense for the witness to be sensitive to opposing counsel’s purpose and to understand the tactics.

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Other Posts on Tricky Questions: 

Don’t Be Led (in Deposition)

Counterpunch: Ten Ways to Fight Back on Cross

When Crossing or Responding to Your Opposing Expert Witness, Look for the L.I.E. (Large Internal Error)

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Image Credit: 123rf.com, used under license

April 6, 2015

Account for Anti-Lawyer Bias in Legal Malpractice Trials

By Dr. Ken Broda-Bahm: 

Dewey_cheatem_howe_mug

Attorneys know that, in the public’s eye, the profession isn’t winning any popularity contests. In a Gallup poll last year, only 21 percent rated lawyers’ ethics as “high” (16 percent) or “very high” (5 percent). This compares to 80 percent who say nurses’ ethics are high and 65 percent who say the same about doctors. Another poll (McGinn & Company, 2012) shows an average belief that 51 percent of lawsuits are frivolous and unnecessary. Two thirds also agree with the statement “Most plaintiffs’ lawyers suing big corporations exaggerate damage claims to win a big verdict or settlement.” To be fair, these negative views shouldn’t apply to all lawyers, since the public’s distrust is likely to focus most on litigators, and more specifically on plaintiffs’ attorneys in personal injury or products suits. But still it is safe to say that for anyone who has a “J.D.” after their name, it is likely that some of this negativity will spill over. 

So what happens when the lawyer is in the defendant’s chair in a professional negligence trial? Herbert Kritzer of the University of Minnesota Law School and Neil Vidmar of Duke University School of Law recently looked at that question. The study (Kritzer & Vidmar, 2015) is prompted by the observation that, compared to medical malpractice trials, there are proportionately few legal malpractice claims that make it all the way to trial. Looking at some venues, the authors note that medical claims are more common, but the ratio of medical to legal claims is fairly narrow: 1 to 1 ranging to 3 to 1. However, looking at cases that go all the way to verdict, the ratio is dramatically different, with medical malpractice verdicts outstripping legal malpractice verdicts by a ratio ranging from 12 to 1 all the way up to 36 to 1. That means that legal malpractice cases are far less likely to go to trial. There are several reasons why medical cases might be more trial worthy: differences in the insurance market, attitudes of judges and arbitrators, and typically lower damage amounts in legal cases. But one remaining factor serves as the focus for Kritzer and Vidmar’s study:  the settlement-driving perception that jurors will be biased against attorneys. Because they could find no evidence in support of that perception, the researchers devised a clever experiment to test whether there is a bias when the defendant is an attorney. The somewhat surprising answer: little if any bias. This post reports on the study and considers a few implications for legal malpractice trials. 

The Research: Measuring the Effect of Anti-Attorney Bias in Three Case Scenarios

It is fairly easy to trust a doctor: Based on our own need, we want to believe that doctors are worthy of that trust. Lawyers? Not so much. At least that is the perception. Kritzer and Vidmar wanted to test that belief by looking at whether jury decisions in legal malpractice cases are influenced by the public’s negativity toward lawyers. Answering that question in actual cases is difficult because every situation is going to be different, and there is a strong bias in the kinds of cases that are decided by jury versus a judge or an arbitrator. So the researchers decided on an experimental approach that took advantage of the “case within a case” that is common in legal malpractice trials. When a litigator misses a filing deadline, for example, the causation question to be resolved at trial is often whether the original claim would have prevailed in court if the lawyer had not missed the deadline. In evaluating the effect of the attorney’s negligence, then, the jury is really evaluating the underlying case. 

So Kritzer and Vidmar created an experimental and a control version of three case scenarios. The underlying claim focused on an auto accident, a sidewalk slip and fall, or medical malpractice. In the control version, the defendant was, respectively, the driver, the sidewalk owner, and the doctor. In the experimental version, the researchers simply added a plaintiff’s attorney who had missed a deadline, and made that person the defendant. The question is, with an otherwise identical fact pattern, will mock jurors be more likely to believe the original claim would have prevailed and more likely to award damages when the defendant is an attorney? 

They assigned a total of 1,157 respondents to the control (original defendant) or the experimental (attorney defendant) versions of each of the three fact patterns. The results varied a little depending on the topic. In the slip and fall case, there was a significant but modest tendency for higher damages when the defendant was the attorney. In the automobile accident case, there was a suggestion that the attorney-defendant version led to higher damages, but the differences did not turn out to be statistically significant. And in the medical malpractice case, there was no difference. They write, “We conclude that there is at best minimal evidence that the simulated jurors in this case were more plaintiff-friendly when the actual defendant was the plaintiff’s former lawyer.”  

The Implications:  Account for Anti-Attorney Attitudes in Legal Malpractice Cases

When the case centers on alleged wrongdoing by a lawyer, juror attitudes are clearly important. But here are a few things to remember. 

Don’t Assume the Worst

If the stereotype of deep hostility toward lawyers were true, we should see robust results in all three scenarios in the study, and not just modest results in one. It is fair to expect some bias, but as the authors conclude, “We would be hard pressed to argue that our study suggests that lay jurors want to punish lawyers by favoring plaintiffs in legal malpractice claims.” 

 But Do Ask

Like every other important attitude, the role it plays will vary from case to case. So it is essential to voir dire for the anti-lawyer attitudes that would matter the most in the context of your specific case. Perceptions might vary depending on whether we are talking about the lawyer’s competence, care, thoroughness, ethics, or zeal. Ask prospective jurors how common it is that a lawyer would lack the quality plaintiff is alleging the defendant lacks in this case. 

And Do Pay Particular Attention to the “Case Within a Case” 

One way to read the study results is that, in most cases, jurors are going to decide the legal malpractice case in essentially the same way they would have decided the underlying “case within a case.” In the actual case, particularly where liability is contested, it will be more complicated than that. But it is natural for jurors to gravitate toward the “first story” in the legal malpractice case: the trial or the deal that could or should have been. 

Of course, none of that is going to stem the tide of lawyer jokes and the bias that goes all the way back to Shakespeare. But as widespread as those attitudes are, they can also be shallow. The more a jury is given a chance to learn about the individual lawyer-defendant and the specific representation, the greater the chance that the jury’s evaluation will be driven by facts and not by bias. 

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Other Posts on Professional Malpractice: 

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Kritzer, H. M., & Vidmar, N. (2015). Lawyers on Trial: Juror Hostility to Defendants in Legal Malpractice Trials. Duke Law School Public Law & Legal Theory Series No. 2015-15

Image Credit: Cafepress, order Dewey Cheatem & Howe mugs here.
 

July 4, 2013

Tame the Reptile in Your MedMal Defense

By Dr. Ken Broda-Bahm

SketchComp4Earlier this Spring, a courthouse in Jackson Mississippi was actually invaded by snakes. That story might have made some in the plaintiff’s bar smile a bit, since in their view, Reptiles have been invading American courtrooms across the country for a few years now. Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan, as well as associated books, DVDs and training seminars, have significantly influenced plaintiffs’ methods of trying cases, and the philosophy currently claims close to $5 billion in associated verdicts. Adherents believe that by framing legal claims as basic appeals to community and personal safety, they are able to wake up jurors’ reptilian minds and motivate verdicts in their favor. As I’ve written before, there is reason to believe the theory rests on a dubious foundation (the largely discredited belief in a reptilian brain governing the rest of our decision making), but that it works nonetheless (because it encourages persuaders to put motivation front and center). 

While not exclusive to the field of medical malpractice, the Reptile and the earlier Rules of the Road work by Rick Friedman both focus strongly on coaching plaintiffs to win these and similar claims related to safety. For defendants generally, I think the theory is best approached by stripping away some of the brain lore used to market the approach, recognizing that without that the Reptile is still a formidable means of legal persuasion, and then finding parallel ways to appeal to jurors’ basic motivations. In this post, I want to take a closer look at the perspective, focusing on one element that is a particular vulnerability to the theory in a medical context: the safety rule

Safety Rules: The Soft Underbelly of the Reptilian Perspective

According to both the Reptile and the Rules of the Road views, the key to the plaintiff’s ability to persuade is to ground the case, not in a legal standard of care, but in a “safety rule,” or a commonsense principle jurors can immediately understand and apply to other contexts. In the formula Ball and Keenan advocate, “Safety Rule + Danger = Reptile” means that once the advocate is able to identify such a rule, and show fact finders the danger to themselves and the community when it’s violated, then they’ve awakened those jurors’ reptile brains, motivating them to equate justice in this case with their own security. 

In other words, the safety rule might be that doctors should do nothing without a patient’s or family’s agreement. The danger lies in doctors practicing in ways that take away our freedom and might miss hidden dangers. When jurors see both, then they’ll act, not in defense of a legal standard of care or abstract notion of “informed consent” but in order to prevent the doctor-defendant, and others like him, from threatening the safety of patients like the jurors and their loved ones. So the act of identifying a safety rule is key to the theory. Even setting aside the notion of a primitive reptilian brain, the articulation of a simple and widely applicable rule is what frames the conflict and motivates the jury, encouraging them to view the dispute in personal and community terms. 

Not just any safety rule works. To really “awaken the reptile,” the rule needs to have the six qualities identified below. These rules about rules are not arbitrary, but help get plaintiffs over the barriers to jurors seeing themselves and their verdict as key to promoting safety and removing danger. 

What the Plaintiff Wants (and What Medical Reality Often Refutes)

Underlying all six elements of a safety rule is a black and white view of the medical world. But the advantage for medical defendants is that the real world of treatment and care typically isn’t black and white, but is instead situational and highly dependent on a particular patient’s circumstances. In resisting plaintiff’s attempt to distill it down to one pithy rule, medical defendants will generally have reality on their side. This sets up a conflict that has existed prior to and aside from this Reptile approach, but has been magnified by it: As plaintiffs’ attorneys push for a black and white worldview, defendants push back with a realistic appraisal of shades of gray. 

The “umbrella rule,” or the formulation with the widest possible application is that “doctors are never allowed to needlessly endanger their patients.” That rule will contain a variant for each particular case, and there are six criteria that, according to Ball and Keenan, will determine whether that safety rule is effective or not. Blocking the overly simplistic rule thwarts the Reptile approach by minimizing the perception of personal and community danger, bringing the focus to what the case should be about: a particular plaintiff’s treatment by a particular physician.  

The response on each of these six elements should inform the ways medical defendants prepare fact and expert witnesses, conduct voir dire, and create openings and closings. Each effort to deny a safety rule in your own case can be part of your message at trial. 

1.  The Safety Rule Must Prevent Danger

Of course, nothing is able to literally and fully “prevent” danger. Teach your jury that physicians are instead trying to lessen its impact or control its course. The reality is that medical care often involves swapping one danger for another in an imperfect effort to make the patient better off. For example, you prescribe a drug with known side effects in order to treat a condition that is, probably, worse than the side effects. This means that the line from the Hippocratic Oath to “first, do no harm” isn’t literally true. Excising tissue in a surgery, for example, is doing harm, but a lesser harm than doing nothing. This, of course, is something that doctors, claims representatives, and defense attorneys understand intuitively. Jurors may resist the message, wanting to believe that physicians can guarantee safety. With a little explanation, however, they can realistically set that notion aside. 

2. The Safety Rule Must Protect People in a Wide Variety of Situations, Not Just Someone in the Plaintiff’s Position

Key to the Reptile’s advice is to encourage jurors to abstract beyond the particular patient-plaintiff and to view the rule as broadly applicable and personally relevant. But chances are, patients’ situations are not interchangeable, and there is no easy cut-and-paste set of rules that apply to all. Doctors have the job of treating the patient, and the more jurors understand that this is highly particular — patient and situation specific — the better they’ll be able to resist the general safety rule. 

3. The Safety Rule Must Be in Clear English

Of course, there is nothing wrong with clear English, but making something perfectly clear in a medical context should never require softening, generalizing, or leaving out key medical distinctions. A dumbed-down principle can be a less accurate principle. Complexity for its own sake is the defendant’s enemy, and can be rightly seen as obfuscation. But realistic complexity — factors and distinctions that are critical to patient care and can be patiently and accurately taught to the jury — is defendant’s friend. 

4. The Safety Rule Must Explicitly State What a Person Must or Must Not Do. 

The key language here is “must” and “must not.” There is no room in a Reptile perspecitve for “typically,” “probably,” or “in most cases.” It has to be an imperative: “If the doctor sees X, she must do Y.” Certainly, there are some parallels to this absolute and linear decision-making in a medical context, but there are also plenty of situations where it isn’t a “must” or a “must not,” it is a realistic “it depends.” Help jurors understand that by explaining and supporting all of the factors that go into that choice. Using a graphic showing a more complicated decision-tree, for example, can truthfully undermine any plaintiff’s rule that assumes an “if A, then B” style of thinking. 

5. The Safety Rule Must Be Practical and Easy for Someone in the Defendant’s Position to Have Followed. 

It is often practical and easy in hindsight: If only Dr. Smith had ordered that biopsy, or if only Dr. Jones had transferred the patient earlier. But the question is never what would have provided better care in retrospect, it is always whether appropriate care was delivered based on what was known and believed at the time. Could the physician have ordered a different test at an earlier time? Of course, that is going to be both practical and easy. But did the physician have solid reasons at the time to have ordered that test? That is a different question. Of course, getting jurors past this psychological preference for hindsight can be a challenging task, but not an insurmountable one. You can encourage jurors to adapt a hindsight-resistant mindset by using a timeline to walk through the story based on what was known at the time, and by focusing on the multiplicity of treatment options, not just the one obvious choice that could have been made in hindsight.

6. The Safety Rule Must Be One That the Defendant Will Either Agree With or Reveal Him or Herself as Stupid, Careless, or Dishonest for Disagreeing With

This final rule really sums up the mindset: You either agree with a simplistic rule, or you are stupid, careless or dishonest. To fight back, you need to mount an educational offensive that frames the choice as something other than that. For example, craft your own safety rule that is simple, yet honest: a principle that jurors can understand and that the doctor followed in this case. If the true rule is a little more complicated than the plaintiff’s proffered rule, then make jurors proud of the extra effort it takes for them to get it: They aren’t taking the easy route, they’re taking the accurate route. 

Plaintiffs Are Pandas and Defendants Are Seals

Since I began this post talking about snakes, let’s end it by talking about some other animals. Noting the responses I outline above to the six criteria for a successful safety rule, it is clear that at every point, the Reptile practitioners are aiming for the simplicity and comfort of an absolute and cut-and-dried formula for medical care. It is so wedded to the black and white that it could have been called “Panda” rather than “Reptile.” Defendants, on the other hand, are often realistically wrapped in all shades of gray — like seals. In practical terms, plaintiffs are often the ones saying, “It’s simple, it’s clear, it’s obvious” while defendants are responding, “Not so fast. There’s more to it than that.” 

Psychology can have a preference for the black and white and for low effort thinking. That is why the Reptile approach works. But reality is often gray, especially in a medical context. That is a big advantage, and defendants shouldn’t hesitate to use it. The panda can be appealing, but better education can seal the deal. 

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Other Posts Related to the Reptile Approach: 

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Original Illustration: Pamela Miller, Persuasion Strategies

November 15, 2012

Consider a Blind Expert Witness

By Dr. Ken Broda-Bahm: 


Photo[1]

Justice may be blind, but hired experts can see pretty darned
well in our litigation system. No, a responsible expert won’t lie
in order to support their client. But yes, a knowledge of who the
client is can’t help but have at least a subtle influence on the
resulting testimony. But that is our adversarial system, right?
Both sides hire the best they can find who are willing to support
their theories, and the two sides fight it out, aided by
cross-examination and a skeptical and attentive jury. That is the
idea, but in practice, there are a few problems with that model.
For one, the adversarial model can end up elevating the value of
the less common expert opinion to the point that a view that,
maybe, only one in a hundred experts would sign on to becomes one
of only two expert opinions presented in court. For another, the
jurors themselves may be desensitized by the knowledge that all
parties are paying for their opinions and simply decide to set
aside the “hired guns” and figure things out on their own. Yet a
third problem is the effect that this model has on the experts
themselves: Academics who are used to following the facts
wherever they lead, without prejudgment or bias, are
uncomfortably thrust into an adversary system and find themselves
working not wholly for the truth, but in order to advance their
client’s case.

Of course, all that shouldn’t be taken as a statement that
experts as a class are dishonest. That isn’t what I’m saying.
I’ve worked with many experts, and to a person they’ve been
honorable and careful women and men who understand that they
cannot mislead the jury and cannot risk being seen as just
another lawyer. But they also cannot take their eye off the
ultimate purpose of their testimony and the reason they were
hired. It is fair to wonder if there’s another way. According to
one model, proposed in a 2010 article in the New York
University Law Review
(Robertson, 2010) and recently tested in an
experiment published in a forthcoming edition of the Journal
of Empirical Legal Studies
(Robertson & Yokum, 2012), there is a
simple solution that would improve both the accuracy and the
credibility of expert testimony: blind experts. No, I don’t mean
hiring Stevie Wonder as your expert witness, I mean
employing a system that keeps the expert blind to the identity of
the client until the initial report is completed. The idea has
implications for how you might think about your experts now and
in the future, so this post will explore that idea. 

The Idea: Blind is Better

Christopher T. Robertson, a law professor at Harvard University
and the University of Arizona, proposed the idea two years ago in
an article simply entitled “Blind Expertise” (Robertson, 2010). The piece provides a
comprehensive examination (for cheaters, a Readers’ Digest
condensed version is available here) of the benefits and the implementation of
a system that would allow parties to employ experts who are
initially blind to the party they’re working for. The following
is what Robertson proposes:  

  • If they wish, parties would contact an intermediary
    organization. Members of that organization, also blind to the
    identity of the party, would then select from a pool of
    prequalified experts based on criteria provided by the
    party. 
  • The hired expert would learn about the case via a screened
    set of materials and, without knowing the identity of the hiring
    party, would draft the preliminary expert report laying out the
    main conclusions. 
  • If the conclusions are not helpful to the
    hiring party, that party would simply pay and walk away. The fact
    that a blind expert was consulted would not be subject
    to discovery. 
  • If the conclusions are helpful, on the other
    hand, the blindfold would be lifted and the expert would be able
    to testify not only about their conclusions, but also about the
    process and the fact that their initial report was produced under
    blind conditions.  
  • In the event that a party chooses to use a blind witness,
    that party would need to disclose all prior blind witness
    arrangements (to prevent the party from trying multiple times
    until they get a ‘hit’ with a blind expert). 
  • Nothing would prevent either party from hiring a paid expert
    instead of or in addition to the blind expert. 

The benefits of using initially blind experts in this manner,
according to Robertson, is that their opinions are more likely to
be consistent with the scientific mainstream, more comfortable
for the experts themselves, and more likely to be viewed as
credible by jurors.   

The Study: Blind is More Credible

To test the result of blind experts on jurors’ views of expert
testimony, Robertson and University of Arizona Colleague David
Yokum (Robertson & Yokum, 2012) conducted
an experiment using 275 mock jurors. The national sample reviewed
video recordings of a 35-minute staged medical malpractice case
with experts on each side testifying on the question of liability
in a failure to diagnose a case. Participants were randomly
assigned to conditions in which either the plaintiff or the
defense expert (or neither, in the control condition) was
identified as a blind expert, and the researchers also varied
whether jurors did or did not receive a special instruction from
the judge telling jurors that they “may,” based on the method,
consider a blind expert to be more credible. 

The researchers found that, even without that special
instruction, the blind expert was significantly more credible and
significantly more persuasive. When all other aspects and facts
in the case and the content of the opinions were kept the same,
the use of a blind expert doubled the odds of a favorable verdict
and significantly increased damage awards for the plaintiff, or
decreased damage awards for the defense, by over $100,000 dollars
in each case. 

And remember, that is when there is no change to the content of
the testimony, other than the description of the blind procedure.
It is also quite conceivable that a blind witness would perform
better because they would be more confident, would feel more
unbiased, and could come across as more of a teacher and a “third
voice” in the litigation. These traits could heighten blind
expert’s persuasiveness even more. 

So What Are the Implications? 

One, Consider a Blind Expert. 

As Robertson highlights in the 2010 article, there are some
reforms that should be undertaken before the practice of using
blind experts becomes widespread. For example, reforms should
ensure unsuccessful reviews don’t become part of discovery, and
also discourage litigants from adopting a “try, try, again”
strategy in the event that an initial blind review isn’t in their
favor. However, with guarantees like that, or maybe even without,
it is easy to imagine some cases that would benefit greatly from
a blind approach. For example, think about a medical malpractice
case in which the defense is very confident that nine out of ten
experts, maybe even ninety-nine out of one hundred experts, would
find no breach of the standard of care. Under the current system,
the plaintiff could still find that atypical expert and, to the
jury’s eyes, the “one-in-a-hundred” becomes “one-in-two” in the
courtroom. If, however, the defense expert was selected blind,
and the plaintiff’s expert was a hired gun, it is more likely
that jurors would see an obvious difference and a wide
credibility gap.

Of course, it is also clear that there are cases where it
wouldn’t be wise to use a blind expert. If your side of the case
requires testimony that cuts against the consensus of likely
opinion, then it would still make sense to use a hired expert.
There could also be cases where it would make sense to use hired
testimony to supplement a blind expert (perhaps requiring
modifications to cumulative testimony rules), because the hired
expert is more qualified or a better teacher.  

There are clearly some elements that need to be worked out, but
it is an intriguing idea. And medical malpractice defense
seems like an ideal setting for trying it out. 

Two, Play Up the “Blind” Features in Your Conventional
Experts.

Even if you don’t move to a blind expert model right away, the
idea and the research provide a good reminder to emphasize those
aspects of conventional expert testimony that are likely to
strike jurors as less biased and more credible. The following are
messages that add credibility to hired witness testimony. 

I said the same thing, or consistent things, before I was
hired, in previous publications and presentations.  

I could have gone even further (on damages, liability,
etc.), but I didn’t.

Their expert uses the same methods, makes the same
assumptions, or reaches the same conclusion. 

In short, it makes sense to take a close look at your expert
witness testimony and emphasize those areas that, from a juror’s
point of view, highlight the quality and the independence of the
opinions.  

While the research reviewed in this post may point to a way to
offer more effective expert testimony in at least some contexts,
for the present we are likely stuck with experts who are
themselves stuck in an adversary system. In most cases, those
experts will be perceived as hired guns. But as one earlier study
(Cooper & Neuhaus, 2000) demonstrated,
that perception is likely to be most damaging when testimony is
unclear or communicated poorly. So, for now at least, it is best
to hire a hired gun who teaches effectively.

____________________

Other Posts on Expert Witnesses: 

____________________

ResearchBlogging.org
Robertson, C. T. (2010). Blind Expertise New York University Law Review, 85,
174-256


 

Robertson, C.T., & Yokum, D.V. (2012). The Effect of Blinded
Experts on Jury Verdicts Journal of Empirical Legal Studies,
9
(4), 765-794

Photo Credit: Ken
Broda-Bahm

October 31, 2011

Don’t Be Spooked by a Legal Ghostwriter

By Dr. Ken Broda-Bahm: 

Ghost stories

So you are facing a pro se adversary, and you expect that due to the lack of legal representation, this party is apt to produce briefing that is legally unsophisticated, and perhaps even entertaining, right?  Maybe not.  Just as pro se litigation has been on the rise, so too has its evil partner, legal ghostwriting.  When lawyers team up with a pro se litigant in order to provide anonymous help on a specific brief, or to engage in a more durable background role, there are good reasons to see that as a creepy development.  For one, judges are encouraged by common courtesy, as well as case law, to grant a considerable amount of leeway to pro se parties based on the assumption that they are acting as their own attorney.  If in fact the pro se parties aren't on their own, then they may be gaining an unfair advantage in the briefing process:  The best of both worlds, legal assistance plus lowered expectations. 

This development, now becoming frighteningly common in personal finance and creditor/debtor litigation, has some important implications for source credibility, fair procedure, and legal ethics.  Based on Peter M. Cummins recent article in For the Defenseas well as two related studies on judicial decision making, this Halloween post is going to take a look at how to identify and defend yourself against the legal ghostwriter. 

The Changing Legal Ghostwriter

When  we think of lawyers providing help on the sly, we might have an image of the "jailhouse lawyer," or the licensed aunt or cousin who steps in to help out a family member.  More recently, however, the picture is changing.  The number of pro se litigants has hit an all time high, includes both plaintiffs and defendants, and concentrates in the areas of family law, personal finance litigation, and creditor/debtor litigation.  Peter Cummins (2011), even cites data from the ABA that 50 to 80 percent of all such cases include pro se litigants on one side, or both sides, of the litigation.   

As the number of formally unlawyered cases climb, these parties may nonetheless be relying on an undisclosed advocate for part of the work.  Indeed, this kind of partial role is facilitated by the concept of "unbundled" legal services, which are encouraged by the profession.  For example, ABA Model Rule 1.2(c), as well as several state bar associations and public interest legal groups, have encouraged limited scope of representation as a way of expanding access to to the courthouse.  So a lawyer may be hired to write a brief, conduct a deposition, or evaluate a case for appeal, for example, and have no further involvement in a case. 

Those limited roles don't raise questions in most contexts, particularly when they are clear and disclosed.  The anonymity of legal ghostwriting, however, raises the question of whether there is representation at all.  Rather than just providing a simple point of entry to the legal process, ghostwriting is also fast becoming one part of the business strategy of many debt-settlement or debt-adjustment companies.  As related in Cummins' article, these companies will refer clients to their own affiliated firms or lawyers to assist a client in their litigation.  The borrower still appears pro se, but still with the advantage of legal assistance in the background.  Further complicating the picture, that background assistance is working not only to answer the debt-related claims, but to also assert a number of counterclaims:  fraud, violation of consumer protection, or truth in lending acts.  As Peter Cummins writes "a pro se litigant has, with the help of a ghostwriting attorney, been transformed from a defendant in a simple collections action into a counterclaim plaintiff seeking compensatory and punitive damages in a friendly state court, with all of the settlement leverage that accompanies that transformation."

The Problem with Legal Ghostwriters

You might think that a judge would give short-shrift to a pro se party, but the opposite appears to be more common:  Parties without counsel are likely to have their claims and their written advocacy read in a light most favorable to that party.  In addition to adjudicating what the party is claiming and arguing, the judge can end up evaluating what the party could be or should be arguing and claiming, which enlists the judge as an assistant to the pro se advocate.  The case of Haines v. Kerner (404 U.S. 519), for example, held that however "inartfully pleaded," materials coming from a pro se party are held "to less stringent standards than formal pleadings drafted by lawyers."  So one problem with ghostwriting is that it can cause this "benefit of the doubt" to be unearned and inappropriate.    

Beyond the case law, there is actually some research to back that up.  Heuer, Penrod, and Kattan (2007), for example, looked at differences between judges and parties in the ways they viewed "fairness" as a matter relating to good procedure or a good outcome.  Contrary to what you might expect, in this study it was the judges (in this study, 70 state appellate and 75 trial court judges) who were more concerned with outcome fairness than with procedural fairness.  That same tendency would likely reinforce the degree of "grace" given to someone who is perceived as pro se. 

The other problem is an ethical one, since legal ghostwriting could keep advocates beyond the sanctioning power of the courts in the case of frivolous filings, for example.

Strategies for Pulling the Sheet Off Your Legal Ghostwriter

One takeaway on this topic is simple:  Don't be a ghost.  But if you are on the other side, and dealing with one, or wondering if you're dealing with one, then there are a different set of recommendations.  The first recommendation is for researchers.

1.  Researchers:  Look at the Effect of Legal Ghostwriting. 

If you are a doctoral candidate or a professor who wants to publish (and not perish), here is a great and timely topic:  Study the way that judges would evaluate the same brief based on information that it either is or isn't produced by a pro se party.  As Neil Vidmar (2011) suggests:  "The number of persons who file and pursue or defend their legal claims with a lawyer (pro se litigants) has been growing, and such litigants have become a major topic of discussion in both federal and state courts….  To what extent do judges make exceptions for these litigants, and to what degree do they focus only on substantive justice outcomes versus providing litigants with a sense of procedural justice?" (p. 61).  Answering that question would make for a neat little study, and one that could be referenced in attorneys' briefs seeking to challenge, unmask, or limit a legal ghostwriting arrangement.

2.  Lawyers:  Check Your Local Rules

There are some jurisdictions that don't permit legal ghostwriting, seeing it as a violation of the attorney's "duty of candor" to the court.  These jurisdictions include Colorado, Connecticut, Kentucky, and West Virginia.  Federal courts, in addition, have come down against legal ghostwriting (for example, in the case of Ricotta v. California (4 F.Supp. 2d 961, 1998).

3.  Lawyers:  Unmask the Ghost

Even when undisclosed in the filings, there are some signs of a ghostwriter's presence.  For example, Peter Cummins suggests there may be an agreement providing for a contingency fee upon settlement making it clear that someone else stands to gain in the lawsuit.  Alternately, a filing to the court, for example, seeking clarification on service requirements, can also flush the ghost out.  That may help to make the true source clear enough to the court and deny the "pro se" party the best of both worlds scenario.

____________________

Related Posts: 

____________________

Cummins, P.M. (April, 2011).  The Cat ‘O Ten Tails:  Pro Se Litigants Assisted by Ghostwriting Counsel.  For the Defense. http://www.dri.org/(S(t5ls5ln2nd3avi55rxkbu155))/articles/YoungLawyers/FTD-1104-Cummins.pdf

Heuer, L.; Penrod, S.; & Kattan, A. (2007).  The Role of Societal Benefits and Fairness Concerns Among Decision Makers and Decision Recipients.  Law and Human Behavior, 31: 6.  Vidmar, N. (January, 2011).  The Psychology of Trial Judging.  Current Directions in Psychological Science, 20: 58.   http://www.jstor.org/pss/25144591

Vidmar, N. (2011).  The Psychology of Trial Judging.  Current Directions in Psychological Science, 20: 58.  http://cdp.sagepub.com/content/20/1/58

Photo credit:  Marxchivist, Flickr Creative Commons

May 5, 2011

In Malpractice Litigation, Account for Jurors’ Motive to Trust the Doctor

By: Dr. Ken Broda-Bahm –

Friendlydocs

There is a pattern in medical malpractice litigation: people want to trust their doctors. This pattern is something observed in our own experience, in human psychology, and in attitudes toward malpractice trials. Plaintiffs only win when jurors are able to overcome that trust. The best thing that doctor-defendants have in their corner is jurors’ strong pull toward trusting the doctor. Job number one in a medical malpractice defense is to avoid any behavior that could lead fact-finders to abandon that trust. Continue reading

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