- Jim Ferraro
Converting Scientific Thought to Legal Thinking
After the near debacle in deposition, I spent days helping my expert witness, the fetal pathologist Dr. Vyvyan Howard prepare for trial, convincing him to drop the word “possibility” from his vocabulary.
I had to figuratively beat the hell out of him to convert his scientific thought process to a legal one, because “reliability” is used differently by scientists than by those in the legal system.
Scientists believe that 95% or more reliability is necessary to claim something is “probable.” In the courtroom, we need only more than 50% reliability to claim something is probable.
“Don’t use the word ‘possibility’ around me, you got it?” I’d say.
“Well, possible is possible,” he’d reply.
“‘Possible’ doesn’t exist anymore if it’s greater than fifty percent!” I’d say. In law, when you tip the scales, a thing becomes probable. Factual statements are based on probability or lack of probability—something either is or isn’t. In the courtroom, it’s really that simple. There is no gray.
In many ways, preparing Dr. Howard was like prepping an actor for a leading role, except he wasn’t making up facts. He was merely learning how to present them in a legal setting.
Yeah, I knew I was getting caught up in vernacular, but in the courtroom, vernacular matters, and often it can make or break a case. And in the Castillo case, I knew DuPont would be all over any potential weakness we had, so I didn’t want to hear that fucking word come out of his mouth—ever.
I bent down, got eyeball to eyeball, and said, “Your only choice of words in the courtroom are ‘It’s probable’ or ‘It’s not probable.’ That’s it. Am I clear, Dr.
Howard? Don’t fucking say ‘possible,’ Doc. Do you understand what I’m telling you?
I felt bad browbeating the guy into submission, but it had to be done. I couldn’t allow his use of scientific terminology in a legal setting to control the outcome. I needed him to understand that he was no longer living in the scientific world. He was a scientist entering a court of law.
Dr. Howard’s testimony was absolutely critical, because as my lead scientist, his testimony was the glue that held all the other scientific evidence together, which made him the captain of our team.
If he slipped up, even once, whether in his deposition or testimony, we were done. Therefore, I ended up meeting with him a lot, talking through every possible scenario that might come up both in our favor and against us.
In my next post, I write about my determination as the trial drew close – it felt, somehow what I imagined gladiatorial combat to have been like.
I’d love to hear from you. Have you ever been in a situation that was so important that your preparation for it seemed as if you were going into a full-body competition? Thank you for sharing.