Thursday, September 23, 2010

Lost in Translation: Science Speak vs. Legal Speak

One day not too long ago, I sat on the stand going back and forth with opposing counsel.

There was no major disagreement. Actually, there was no real disagreement at all. The problem was that we were speaking in different terms. At one point, opposing counsel smiled with a sigh, clearly giving me that look that said he knew I was never going to agree with him because he was the "opposition." I smiled back knowing what he was thinking and knowing that he was wrong.

I wasn't trying to be difficult. I usually try to be fairly pleasant when I'm testifying...I know, shocker right? Although I will admit that when counsel becomes hostile my testimony can become rather short. Kind of like this wonderful scene from "Better off Ted."

Female Lawyer: Were you involved in the development of this product? 
Veronica: Yes. 
Female Lawyer: And how would you summarize the company's reaction when they found out that the women who used this product were savagely attacked by insects? 
Veronica: Ouch. 
Female Lawyer: Will you elaborate on that, please?
Veronica: No. 
Female Lawyer: Can you describe your job? 
Veronica: Yes. 
Female Lawyer: How would you describe your job? 
Veronica: Cleverly
Anyways, I digress.
In normal life when you are trying to explain science to your friends or family and they say something back that shows that they understood the gist of what you said, then you agree that they are correct. Close enough, right? That can never be the case in the courtroom, because if you agree to something as "close enough," then you will immediately have to backtrack with the follow-up questions, because you've essentially agreed to something that wasn't accurate in the first place.
And this was our issue at that particular moment. What he was saying was indeed "close enough," but it wasn't quite right.

Part of the problem is that scientists and lawyers speak different languages. Truly. It's like American English versus British English. It's all English, but if a Brit asks for a fag in the US...well, you see the problem. There is a communication issue. Our problem at that moment was that one phenomenon was actually first pass metabolism and not elimination. Yes, it's "eliminated" from the body, but it's not exactly what we're talking about when we discuss elimination rates. He was frustrated that I wouldn't agree, and I was frustrated that he was just repeating the same questions.

The especially frustrating thing about this situation (that I and others have been in many, many times) is that it can all be cleared up by one word: "Why?" If he had simply asked "Why is that not the same thing?" I could have launched into a description that may have clarified the situation and made clear to him that I was not trying to avoid his questioning, but that we had a difference of terms.
I don't know why that question is never asked. Perhaps it's because attorneys are used to factual witnesses or perhaps they simply don't want to ask the question when they don't know the answer. This is actually why direct testimony tends to be easier. They ask open ended questions and essentially allow you to drive the bus, since they know what your testimony will be. Opposing counsel wants to keep your answers as short as possible to avoid you driving the bus in a direction they don't want to go. The result though is that you argue over minutia and terms as opposed to substance.

I actually have an answer to this. Ready?
Depose the expert.

Yeah, that's it. If you depose the expert you will have some idea of what their testimony will be and you won't be afraid of the "whys." It sounds obvious. It is obvious! Yet, though the cases I have provided testimony in number in the thousands, the number of times I've been deposed only number in the dozens. I'm not sure why that is. Perhaps their clients don't want to increase the billable hours. Perhaps the science is intimidating or maybe they think there is no point because the expert will provide testimony like my example above. Perhaps my attorney friends can elucidate.
A good expert witness will seek to clarify not obfuscate. As I've said before, the expert witness is speaking for the science. They should be making sure that the attorneys, judge and jury all understand what the science means. Having disagreements simply because one party is speaking British English and the other is speaking American English is counterproductive. Ask why. If you're concerned about the expert driving the bus then ask the why's during deposition. The witness may not be trying to be difficult.

There are many words where this language barrier appears. In many cases, myself and my science colleagues have become accustomed to the legal definition of the word and simply agree if it is being used in a legal context. There are many words where the communities have different definitions, but one of the most common words tends to be "accurate." It is a given that when scientists use the word accurate, that they mean within the accepted uncertainty for that test. When lawyers use the word accurate they mean that the value is exactly (to whatever decimal place it is) the number. Part of the language barrier comes in because either party doesn't realize that there is a language barrier.
Perhaps a translation dictionary would be helpful, but until that dictionary is written, it's probably just a good idea to not be afraid to ask the questions.


  1. RELIABLE!! That is my 'legal speak' word of the day.

  2. I thought about commenting on "reliable" as well. Perhaps next time. :-)