I get a lot of calls about slip-and-falls. While some lawyers consider a slip-and-fall case a walk in the park (so to speak), safety guys generally have a different view. That view can be expressed as this: most of them are complicated and the answer isn’t as clear as everyone thinks. Lawyers for example, like to think that a little water on a vinyl floor is all it takes. Well, sometimes that’s the case. And sometimes it isn’t. I’ve been involved in a few cases where the slip wasn’t a slip at all, but a trip. Big difference. Typically, if the victim falls backward, it’s a slip. If the victim falls forward, it’s a trip. Backward: slip. Forward: trip. Pretty simple.
Or not.
Sometimes, things get weird, like when the middle-aged lady in the retail store suddenly started skating along the floor like there were ball bearings on her shoes. This was before the skate-tennie was invented, so we ruled that one out pretty quick. The plaintiff’s counsel, an old, experienced wardog of a lawyer had it figured out: “the floor,” he told me “had too much wax on it. Way too slick.”
Actually, under certain conditions, wax will actually slow you down. It’s complicated.
I inspected the place, and the floor looked fairly normal. And there was no water around to spill. Then one of the cashiers happened to remember that the week the accident happened, the store was selling houseplants in the area. Had a little table covered with houseplants. . .that were watered regularly to make them look nice. Fine. Now we had the water. But again, water wasn’t going to do it alone. Was there something about the plant itself? One of the cashiers had remembered having problems with kids coming along, picking parts of the houseplants and throwing them on the floor.
I dug out my old botany textbooks. It seems the stems of plants are composed of several layers of cellulose over regular cells that contain–among other things—oil. A plant stem removed from the rest of the plant begins to decay pretty quickly and, especially in water, turns into a gooey mush that includes a mixture of water and oil—just like you find in a bottle of Italian salad dressing. Shake it up and the oil in the water forms beads. Like tiny ball bearings. And another thing—the stem, made of cellulose, is usually the last to go bad.
So here was a plausible model—a couple of plant stems and stalks lying on the floor—maybe in a puddle of water. No obvious danger. But on closeup, the stems were essentially like paper soda straws filled with salad dressing.
Ever see those pats of butter in the cafeteria? The ones with the butter sandwiched between a piece of glossy cardboard and thin paper? Between a shoe and a hard floor these little guys act like cheap skates. They actually get you moving more quickly than cheap skates. But with less control.
Okay. Based on the evidence it seemed that the stems and stalks on the floor acted like that pat of butter. If someone stepped on them properly, they would suddenly find their foot was propelled forward by thousands of tiny little balls of plant oil.
The defendant made a settlement offer (during trial) and the plaintiff accepted. After that, the store solved the deadly houseplant problem by restricting sales of its plants to the garden area behind the building.
I was reading a deposition awhile back in which the expert witness, a smart guy with a few letters behind his name, was asked if he thought something would happen. His reply: “In all probability, it would.” The attorney moved on to the next question.
He shouldn’t have.
Instead, he should have asked Mr. Expert something about those words “in all probability.” Something like. . .”what exactly do you mean when you say those words?”
I’ve read a lot of depositions and I see those words all the time, coming from people who want the jury to believe the attorney questioning him (or her) Just Doesn’t Get It and statistics (and thus, perhaps, The Almighty) is on their side. Attorneys on the other hand, are often people who were once liberal arts majors and never, ever took a course in statistics. Or if they did, it was probably the “statistics for liberal and fine arts majors” course where they learned that the correct term for “average” is “mean.” Okay. Maybe that’s harsh.
But attorneys really should be on the lookout for buzz words that sound like harbingers of a Foregone Conclusion but in fact may be orphans—standing between the rails as the Statistics Train fades away into the distance.
I always tell my clients to listen for words that suggest throwaway conclusions but in fact are tied to fairly rigorous mathematical procedures. Lazy experts (yeah, there are a few in this world) like to use them in place of real analysis. When tagged, they fall back on their voluminous, multifaceted and most importantly, unverifiable experience. “Based on my experience” these guys intone, “the probability for this to occur is high.”
Well, I’ve probably said something like that myself—but only after an eight-hour deposition and only after my blood sugar level was in the negative numbers. Nowadays, I know that many probabilities *can* be quantified. And if an expert is charging his client more than three figures an hour, he should be able to come up with a reasonable probability figure that at least vaguely resembles statistics. And it should be correct.
If I get the chance to coach a client before deposing some of these experts, I usually recommend listening carefully for the following words: probability, chance and liklihood. All can be quantified, and if the expert is earning his or her keep, then that quantification has been made in terms of *confidence interval.* In later posts on Safety Gig I’ll discuss how this is done. But for now, here are the important questions attorneys should ask:
1. You said there is a high probability. Is that probability greater than 50%?
2. Is it 90%? (remember that science generally requires the confidence interval to be in the 95 percentile. This is the same as having a probability of 5 percent or less that the relationship is due to chance.)
3. (Pushing a calculator across the table) “Can you show the jury how you made that calculation?
The last question is a bit unfair, because the actual calculation for probability usually (probably!) involves some pretty intensive mathematical grunt work involving such things as maximums and minimums, iterations, random numbers and such. Fortunately, there are software packages that do this for the expert, notably Decisioneering’s *Crystal Ball* and Palisade’s *At Risk*. Both are easy to use and reasonably priced.
Getting back to the questions. While attorneys must understand the science of the case as well as the experts (some actually know it better than the experts!)—many hate to appear foolish, even in deposition. Nothing—*nothing* is more fun for an expert than lecturing the opposing counsel on *how* to frame the question. Yet, the attorney must remember that in this regard they are standing in for the jury—a bunch of decent, hardworking people who probably don’t have the time nor inclination to think much about statistics—yet, may have to use it to decide a case.
All the more reason to make that expert come up with a number—a number that can be defended, explained or attacked. As I always tell my clients: make ‘em *quantify* it! If they cannot, then the proper response should really be: “you don’t know, do you?”
And the honest response under those circumstances, would be. . .
“well. . .no.”
More about this in future posts.
I was cleaning out the office last week and came upon some binders from a case I had worked on in the late 1990s. They were depositions taken of a expert witness involving a simple slip-and-fall case. And no, I wasn’t that expert. I noticed one binder in particular—attached to each page was a yellow post-it note and on most of the notes were drawn stars or the word “yikes”. Stuff like that. I nodded to myself: this was one of the good ones.
Most people have never heard of the word “deposition,” and those that have equate it with something being deposited—like nuclear fallout or bird droppings. Stuff that is toxic in some vague ill-defined and barely-understood way. Depositions in the legal world refers to experts with (1) experience and (2) opinions. . . answering questions posed by attorneys skilled at (1) logic and (2) rhetoric.
Unlike most of the so-called “reality shows”, depositions are always fun to watch–and read. On one side, you have the scientific expert. Occasionally this person is an academic type who is accustomed to deference from students and non-Phds and one who thinks “robust discussion” means a brief skirmish before a consensus is reached–a concensus that precisely matches the expert’s original opinion.
On the other side you’ll find the lawyer—a guy who has seen it all (at least twice), likes his steak well-done, knows what he knows. . .and has a crisp ability to use logic, rhetoric and countless other reasoned arguments to point out the flaws in the expert’s opinion. Not just flaws, but *fatal* flaws–flaws that make the expert’s opinion not only *worthless* but *less* than worthless. Dangerous, maybe.
This combination, of course, includes all the makings for great theater. Two talented people argueing over what happened and most importantly, *why* it happened. If the expert wins, then the opposing counselis assumed (for the moment) to be riding a bad case down an arc that will end—well, badly. If the lawyer wins, the expert comes across as a fool, which, of course, is not a good thing for street cred, academ cred or, in fact, any cred whatsoever.
Throw in a couple of hundred thousand (okay, maybe—like in a recent case–4.4 million—which my client won) and the stakes are high indeed.
Even when immersed in these interminable struggles (a depo is often six hours long), I always gauge my answers by how they may be perceived by an audience–the jury. And of course, my tormentor—the opposing counsel–has exactly the same thing in mind. More specifically, opposing counsel wants to reveal to the jury how this expert isn’t really an expert, but a hired gun, a fool and a charlatain, the theories he expounds are half-baked at best, totally bogus at worse, and overall, simply should be dismissed as a mix of claptrap, noise and static.
The expert wants the audience to believe that his opinions are expressions of pure reason, and that his analysis of events more or less mirrors reality.
The stakes are high. The expert believes in his model (it’s usually called a “model”) and the lawyer often believes the expert is a hack that happens to be totally wrong in his/her conclusions. Or, the lawyer believes the expert is on to something—which raises the stakes even higher.
Reading a deposition where the expert had welded his reputation to his opinion (most of us, do) and where his interrogator was intimately familiar with the arcane rules of logic (most good lawyers are) is great fun. Sometimes the lawyer scores huge serious points, such as through the use of hypotheticals. Sometimes the expert, under withering fire, advances a salient into the opposing argument in such a way that the only sensible response is to change the subject or suggest everyone break for lunch.
On the surface, it’s two people argueing with each other. But in the greater sense, it’s far more—it’s a microcosm of how we understand and interpret the events of our world. Each event we witness is associated wth an internal (sometimes flawed) expert who is tasked with the responsibility of explaining the world to us in terms we can understand. However, we also have an arbiter, a verifier, *our own internal lawyer*, if you will, whose job it is—is to reduce the event into terms we can understand. Real World Sensible.
Thus, we evaluate our own experiences—then decide what they mean in the overall scheme of things.
Getting back to the old deposition from the 1990’s, I’m looking forward to reading it again. Given all the yellow post-it notes, I’m sure I’ll find confict, mixups, and who-knows-what in those pages. You read enough of these things, like I have, and the voices become real–Question vs Answer.
A good deposition can frame the conflict in a very precise way, getting right down to the essence of things. Which is why I believe somewhere, some television producer is planning his perfect reality television show: Deposition: The Ultimate Reality Show.
I know I’d watch it.
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jour·nal n. A personal record of occurrences, experiences, and reflections kept on a regular basis; a diary.
95. If it's not physics, it's magic.
--G. Noss
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