A tale of two experts.

Two experts, from different sides, helped me enormously in two cases I handled, but for very different reasons--in one, because of the witness's honesty and fearlessness, and in the other, because of the witness's arrogance.

In the first case, my client was a woman in her mid- 40s who had suffered a debilitating injury during open-heart surgery to repair an atrial septal defect, commonly called a "hole in the heart." She had been convinced to have the surgery by one of the city's leading cardiothoracic surgeons.

When she awoke from the surgery, she suffered from quadriparesis. What had happened? None of the physicians who took care of her knew. Obviously, something had gone wrong; my client knew that the surgery shouldn't have left her bound to a wheelchair and a life that had dramatically changed for the worse.

The case was defended by the most successful malpractice defense attorney in Washington, D.C. Here was the plaintiff, taking on a large institution--and one of its most famous surgeons--with the best defense money could buy. To make matters worse, before the trial, the doctor died. He was mourned deeply, and the defendants were not about to let his name be tarnished.

At trial, our case proceeded well. Our experts included the late Dr. William Brownlee, a board-certified surgeon who had also served as the city's medical examiner, speaking specifically on causation. Brownlee concluded that there had been an injury to the victim's anterior spinal artery.

This appeared nowhere in the patient's medical records, of course. Interestingly, the defense experts, who were well-known neurosurgeons, couldn't challenge Brownlee's conclusion as to the location of the injury, but they disagreed with Brownlee that the cause of the damage was more likely than not an air bubble that had negligently been allowed to escape from the heart and move to a particular spot in the anterior spinal artery that controlled the blood supply to the nerves that affected the injured parts of my client's body.

To demonstrate their argument, the defense introduced an exhibit, a model made of plastic tubes with red liquid enclosed in a plastic case to represent the circulatory system of the heart, the brain, and the spinal cord. Over our rigorous objection, the judge allowed the exhibit into evidence.

I asked Brownlee to return to the courtroom as a rebuttal witness, specifically to address the issue of the exhibit.

I asked him to come down in front of the jury and demonstrate why the model was not a true representation.

As he was holding the exhibit, I noticed that he was moving it ever so gently and slowly, trying to get the air bubble to move to the representation of the anterior spinal artery. But no matter how hard he tried, he couldn't do this. Nevertheless, he brilliantly explained that plastic tubing and red fluid are not the same as the arteries and blood and that therefore the exhibit was not a fair representation of the human body.

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Although there was a hung jury after a week of deliberation, I was convinced that without Brownlee's efforts, we would have lost because of that misleading exhibit. Happily, the plaintiff obtained a substantial verdict in the retrial, thanks largely to Brownlee's excellent performance.

In another case, an expert testifying for the defense was an accomplished doctor who had previously testified for the corporate defendant and many others. I had cross-examined him on many occasions. One of his claims to fame was that he had assisted in the autopsy of Elvis Presley. In trial after trial, I would notice that jurors would sit up when they heard the name Elvis Presley. It was very effective.

In this case, jurors were looking for something that would help them understand the experts and what kind of people they were--and how much credibility to give them. The cross-examination began as follows:

Q: Doctor, we've met before, haven't we?

A: Yes, we have, Mr. Nace. (You need to imagine the witness's pomposity and arrogance as he answered.)

Q: There is a question I have always wanted to ask you, doctor.

A: And what would that be, Mr. Nace?

Q: Is Elvis really dead?

Everybody in the courtroom, from the judge to the jury to the defense counsel to the bailiff, started to laugh. Except the witness, who responded without any touch of humor:

A: Yes, he really is dead, Mr. Nace.

This made everyone laugh even harder. Then I used a phrase the jury had heard innumerable times over the weeks of the trial:

Q: Is that with a reasonable degree of medical certainty?

To which everyone again began to laugh.

A: Yes, Mr. Nace, it is.

His response was, again, without a touch of humor. I felt that this particular exchange, along with others that showed this witness's pomposity, were key to the jury's acceptance of our experts and their credibility. The jury awarded a verdict for my client.

BARRY J. NACE is founder and senior partner of Paulson & Nace in Washington, D. C. From 1993 to 1994, he was the president of AAJ, then ATLA.