By Hon. (Ret.) Ken E. Adair
Explain Why Your Witness is an Expert
Video Transcribed: What is the definition of within a reasonable degree of medical certainty? Is there a definition? I never thought about it. I always thought it was kind of hokey a little bit or a little hinky, depending on your terminology that a lawyer would ask a medical witness, “And are you sure doctor, within a reasonable degree of medical certainty?” The doctor without fail says, “Yes. Yes, it is.”
Yet, the doctor doesn’t know what within a reasonable degree of medical certainty is. It is a phrase that was invented for courtrooms and for jury trials, and for hearings in front of judges. It doesn’t exist anywhere outside the courtroom as far as I can tell and I tried to research it.
But what brought it to my teaching is I got a survey from the National Judicial College and I take that back. It might’ve been from a university. I used to get a lot of surveys from the National Judicial College. Sometimes I’d get one from a university about stuff. I answered this survey. I didn’t normally answer surveys, but it was basically about the concept of what does it mean to you? Have you ever gotten a definition? Has anybody ever tried to define it for you? The answer ultimately became clear to me that the answer is, “No, it’s never been clearly defined.”
What’s the most important thing when you’re putting on medical evidence whether it’s an injury case or some other case involving noneconomic damages, you’re using a psychologist, you’re using a physician, or if it’s a medical malpractice, medical betrayal case or dental.
The issue is one of the credentials of the medical professional, what are they? What do they know about the person that they’re opining about or giving a medical opinion about? What do they know about that person? What did they learn about that person? Number three, what are the clinical impressions of what they know based on what makes them so smart?
I say that the first video deposition I ever did was a trial deposition of a neurosurgeon. I had watched some trial depositions and some video depositions prior to doing this. I was terrified because I’ve never done one before. I had pleasure watching a video deposition of an attorney named Mike Jones. And if you’ve never had the pleasure, you should watch Mike Jones do some work. He was actually a witness in a deposition in an attorney fee case. I watched that.
So I went to do a trial deposition of this neurosurgeon who had treated my client, an adult developmentally disabled young lady for probably 15 or 20 years, maybe since early childhood, maybe over 20 years, he had been her physician and he was an elderly guy, really smart. I didn’t have a bunch of notes on a notebook paper and my co-counsel, who had been on this case for a long time was very disturbed because I didn’t have notes.
So I did about a three hour trial deposition of this neurosurgeon and she said, “How did you do that? How’d you ask them all those questions without any notes?” And I said, “I only asked him three questions.” She goes, “No, you asked him over a hundred questions.” I said, “I asked him three questions.”
Number one, what makes you so smart? Right? What are your credentials? What have you done? What’s your education? Where all of you worked and what departments have you worked in? So number one is what makes you so smart? Number two, what do you know about my client? Tell me about her medical history. Tell me what you know and tell me how you know it. Number three is, what are your clinical impressions?
What makes you so smart plus what you know about my client? How does that affect your opinion? Or what opinion do you have clinically about my client? And that’s it. What makes you so smart? What do you know about my client and what are your clinical impressions based on how smart you are and what you know about my client?
When you do that, that’s technically within a reasonable degree of medical certainty. This is not a Hogwarts where you get to wave a magic wand and utter of some spell and it makes something true. Yet, we treated that way and we ignore the importance of what it is that makes your witness so knowledgeable. It’ll also, if you understand this concept and you understand it within a reasonable degree of medical certainty has no definition. It has no meaning. And it’s not really a magic phrase. It’s not required in a court of law.
There’s a doctrine called magic words doctrine, which says that the exact words don’t need to be uttered, check your own jurisdiction and look at it. Makes you understand that the concept behind this mythological phrase beyond… Or within a reasonable degree of medical certainty.
Understand the concepts behind it, convey that to the jury. Don’t get caught up in this prophylactic use of a phrase. Again, it’s not Harry Potter and it’s not Hogwarts. Just try to have some understanding about what you’re doing. It’s not really that hard. I think it’s harder to get into the mechanics of the testimony that it is to get into the truth of the testimony.
I hope this has been a little bit helpful. I appreciate you watching. I look forward to seeing you again. Thank you very much.
The only way to really learn how to put on an Oklahoma jury trial is to simply try a jury trial. That’s not always a great idea, especially when it’s a high stakes case. You don’t have to do this alone. You can always have an experienced co-counsel by your side. I’m former Judge Ken Adair, and I provide first-chair and co-counsel services because now that I’m retired from the bench, getting justice through aggressive and competent jury trial practice is all I want to do. Learn more at Trial.Win.