The Trial Lawyer's Conundrum With 'Magic Words'

This article was first published in the Detroit Legal News on January 11, 2024.

A. Vince Colella
Moss & Colella P.C.

In a personal injury or medical malpractice case, the challenge of a trial lawyer is to make complex matters easily understandable for a jury. However, laying a foundation for expert opinion testimony can be difficult to navigate without relying on legalese, pedantic language, or redundancy. Always fearful of the appellate consequences of using our everyday vernacular, trial lawyers blindly fall into the trap of relying on legal jargon taken straight from the appellate digests. While this may be fine when arguing motions or appeals, it is not advisable when speaking to a group of our peers. Hence, the conundrum: Is it ok to establish the elements of a case with plain language without relying on confusing legal buzzwords and stock phrases?

Take medical malpractice cases, for example. It is well recognized that the party offering the testimony of a medical expert must demonstrate both the witness’ knowledge of the applicable standard of care and the basis (or source) of that knowledge. Most lawyers endeavor to satisfy the “basis or source” requirement by eliciting how the expert is “familiar” with the standard of care. And judges, the gatekeepers of the evidence, accept this method as sufficient. Yet, defense lawyers are quick to object when a trial lawyer simply points to the expert’s experience and background to demonstrate the expert’s “familiarity” with the medical standards.

However, the law does not require rote phrases or “magic words” to meet the foundational threshold. Recently, a Michigan Court of Appeals panel was presented with the question of whether an oral surgery expert’s testimony was sufficient to establish the standard of care where the expert did not explicitly state that he was personally knowledgeable and familiar with standards and did not explain the source for his knowledge. Webster v. Osguthorpe, 2023 Mich. App. LEXIS 9421 (Ct. App. Dec. 21, 2023) Despite not specifically mentioning the obvious by leaning on stock phrases or buzzwords to demonstrate his knowledge, the court found that his lengthy experience as an oral surgeon, as well as his educational background and credentials (which were unchallenged by the defendants) was sufficient to establish a foundational threshold for his opinions. As an aside, the Webster court further determined that while the expert did not explicitly testify that his opinions were based on a national standard as opposed to a local one, it was not error to allow the testimony where the defendant was free to explore the differences but chose not to.

From the perspective of the trial lawyer, the Webster opinion tells practitioners that it is not necessary to bolster a question with legal lexicon or superfluous repetition of the obvious (i.e., “Doctor, can you tell us how you are familiar with the standards for which you speak?”) for an opinion to be proper. Rather, the trial lawyer may establish an expert’s “familiarity” by more common-sense questions about his or her experience, education, and background.

Of course, medical malpractice cases are not the only place where lawyers fall prey to colloquialisms and lexicons under a faulty assumption that certain words or phrases are necessary to lay a proper foundation. It is also a common practice in ordinary personal injury cases. Trial lawyers are creatures of habit, routinely regurgitating legal babble while attempting to bridge the gap between a defendant’s negligence and the injuries that result. All too often, lawyers attempting to establish proximate cause default to the phrase “within a reasonable degree of medical certainty” when questioning an expert on the issue of causation. While the phrase is often relied upon to lay a proper foundation, the law is conspicuously silent to its required use. Nevertheless, it is the preferred method of examination used by most lawyers who fear the consequence of asking the question in a more direct and conversational manner.

While it is true that proof of causation equating to “possibility” is not sufficient as a matter of law to establish the required nexus between the plaintiff’s injury and the defendant’s tortuous conduct, there does not appear to be any legal mandate suggestive of specific language to establish the proximate cause relationship. Logically, one would think that simply asking a physician or expert, based upon their education and training, whether it is “more likely than not” that the conduct in question caused an injury would be much more persuasive. Moreover, from a juror’s perspective, convoluted legal terms and phrases are likely to create confusion and doubt. In fact, the phrases “reasonable degree” and “medical certainty” linguistically appear to be an oxymoron.  

In trial, it is important to speak in plain language and in terms that are generally used in public that are relatable to a jury. Using everyday conversation creates trust between the lawyer and jurors that is paramount to obtaining a favorable verdict for the client. Practitioners should be mindful of the actual requirements of establishing a foundation for expert opinions rather than simply assuming that historically acceptable modes of examination are the gold standard.

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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.