Language In Court

A recent post at Lawyers, Guns & Money reminded me of a transcript I recently read, in which a plaintiff's lawyer was insisting upon calling the defense's medical examination of the plaintiff a "defense medical examination". This type of evaluation is authorized by MCR 2.311,

When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental or blood examination by a physician (or other appropriate professional) or to produce for examination the person in the party's custody or legal control.

The defense attorney objected to the phrase, and repeatedly argued that it was properly called an "independent medical examination" because "That's what they call it in the court rules."

The defense attorney was wrong. The closest the court rules come to describing something as an "independent medical examination" is in the mental health rules, where an indigent person who is the subject of mental health proceedings can request that the court order an "independent clinical evaluation". MCR 5.733. The term "independent medical examination" or "IME" is frequently used to describe a medical examination paid for by the defense, and conducted by the defense's medical expert, but that phrase receives no special sanction in either the Michigan Court Rules or Michigan Rules of Evidence.

A plaintiff's lawyer who thinks about the issue would find the phrase objectionable, as the word "independent" suggests that the evaluation is somehow neutral. In fact, these examinations are often performed by doctors who earn hundreds of thousands of dollars per year performing these evaluations for defense insurance companies merely one or two days per week. There have been scandalous examples of "IME mills" which are set up to produce medical evaluations coming to whatever conclusion their insurance company clients demand. In practice, as you would expect, there is a spectrum of competence and honesty in the conduct of these medical examinations. Yet even if the examination is performed by a competent, honest and ethical defense expert, it is independent only in the sense that it is performed for reasons other than treatment by somebody who has no doctor-patient relationship with the plaintiff. It is more accurate to describe this type of examination as a "defense medical examination" than as "independent".

There are studies demonstrating that words do have an impact on perception. Describing how two cars "crashed" or "smashed" into each other gives a different impression of what occurred than stating that they "collided", and a first impression created by such language can affect a jury's perception of the accident and of the vehicles' speed at the time of collision. "The driver proceeded into the intersection in disregard of the traffic signal and came into contact with another vehicle" versus "The driver sped through a red light and crashed into another car." In a discussion of these issues, a defense lawyer dryly quipped that Michigan's standard police form for car accidents - the UD-10 "Traffic Crash Report" - must have been named by a plaintiff's lawyer. You can do what you want to refer to automobile collisions and contact between vehicles, but then the officer gets on the stand and suddenly it's a "traffic crash".

The LGM post described a judge's decision in Georgia, which at least in theory attempted to remove some of these semantic issues from a sexual assault trial.

Lithwick reports on a Nebraska state judge who is presiding over a rape trial and who granted a defense motion to bar the attorneys from saying the words "rape," "rape kit," "victim," "sexual assault," or "sexual assault kit." The prosecution responded by seeking to have the words "sex" and "intercourse" banned, as those words seem to suggest consent in the same way as the use of the word "victim" connotes lack of consent.

I can understand why a judge would be sympathetic to a defense motion that the terms "rape kit" or "sexual assault kit" not be used to describe the collection of evidence for a sexual assault case, as the language suggests that a rape or sexual assault occurred. I'm not stating that "juries aren't smart enough to figure out what it means", but it is possible to convey the same meaning without using loaded language. I can also understand why a court would be sympathetic to a defense motion that the complaining witness not be deemed a "victim" in advance of the jury's determination that a crime occurred. But the ban of the words "rape" and, particularly, "sexual assault" seem to me to be excessive at a trial where the defendant is in fact charged with those offenses.

The judge determined that it was okay to say that there was sex involved in the alleged crime. Is it permitted to separately say that there was an alleged assault? That would, of course, mean that the jury could hear separate descriptions of the same act, once as "sex" and once as an "assault". Somehow I suspect that a jury would be able to figure out that the complaining witness was complaining of a "rape" or "sexual assault" despite the judge's prohibition of those terms. Within this context, beyond making it more difficult to describe the two competing versions of what allegedly happened, can it truly be said that the ban changes anything?