When someone is injured in a motor vehicle collision and takes their case before a jury, they often find themselves face to face with a rather challenging dilemma.There is a fairly substantial general bias in America concerning injuries that are not obvious, especially when the claimant has hired a lawyer. The magnitude of this bias is reflected in several surveys of the general public. Two areas in particular are frequently misunderstood by most laypersons (and even by many in the health care fields): mild traumatic brain injuries (MTBI) and the long-term residual clinical effects that sometimes result, and whiplash injuries.
In past articles, I've discussed some of the sources of this bias, which generally will be exploited and leveraged by defense attorneys. However, there is a hugely effective way to leverage the testimony of the plaintiff's doctor or expert. It is referred to as illustrative evidence. A court will allow an expert witness. Any treating physician is typically viewed as an "expert" by dint of their years of professional training, even if they have not been retained by the plaintiff lawyer for that purpose.
Illustrative evidence is separate from what is sometimes referred to as substantive evidence, which is usually directly relevant to the case. Substantive evidence is usually available for jurors to take with them into their deliberation; illustrative evidence is usually not available, but serves the critically important function of providing an expert with a teaching aid to make brief comments and conclusions understandable to lay jurors.
I am a very strong believer in two facts, despite contradictory popular theory: 1) Complex ideas and facts can be made sufficiently understandable to laypersons in a very brief period of time; and 2) A successful presentation will very often swing a jury to accept the truth. It is neither necessary nor advisable to hide facts or fictionalize the case. These are, instead, the instruments of your opposition who has nothing to gain and everything to lose from your testimony.
Many years ago, we used fairly crude models or props to help us communicate with jurors. Flip charts, which I still have to use sometimes, have largely given way to laptops, LCD projectors, 3-D animations and video footage. One form of exhibit I find particularly important is the large (3x4 ft) poster. Very often I use two: one for the biomedical issues and one for biomechanical issues. They are an effective way of getting me down in front of the jury. Unlike the brief PowerPoint presentation or video, posters can sit there through the whole trial and are available for any other experts to discuss; even the defense's. Because of that, they are deceptively persuasive.
However, there are some practical problems with posters. One can never really tell much of the story with "out of the box" posters. You'd need a dozen or so to get the job done, and even then, you'll often have to gloss over critical details. Another problem is that made-to-order posters require the person ordering them, typically a plaintiff lawyer, to have a clear notion of what it is, exactly, that their expert wants to convey. The artists who make them have their anatomy books as references, but, in my years of experience, they often do not accurately reproduce the anatomy, pathophysiology, biomechanics, or some other crucial element. Very often the end product is a very expensive and professional-looking poster, but one that can't optimize the witnesses testimony because it has missed, understated or exaggerated some of the most important points.
It finally dawned on me that I could make these posters more effectively than either the lawyer or the artist. I'm being careful to use the word effectively here, because while I am not a professional artist, I do have enough skill to get the job done and, most importantly, I'm the one who best understands the facts that the posters are supposed to convey.
In the early '80s, it wouldn't have been feasible for me to take up airbrushing as a avocation, but today it is easier than ever to rely on computers to do the heavy lifting. Let's discuss the basic, commercially available software that I use for accomplishing this goal. The three I use most often are Adobe Illustrator, Adobe Photoshop Extended and Adobe Acrobat Professional. Note that Adobe has pretty well cornered the market on digital media for communications today and its full suite of applications includes software for editing movies, producing special effects and developing Web sites. Before you buy, it is a good thing to think about what you might be able to use because Adobe has a lot of different combinations of applications.
Adobe Acrobat Professional
The latest iteration of Acrobat is version 9.3. This is the grown-up version of Adobe's ubiquitous freeware product, Acrobat Reader, which is available as a free download at www.adobe.com. Of the three programs discussed here, Acrobat Professional is the one you will probably use most often. In addition to authoring the final digital media that leaves your office on its way to becoming a physical poster, Acrobat Professional will also allow you to create your own PDF files of just about anything. I even back up my e-mail in big PDF files. I rarely send out printed documents these days, even in medicolegal cases. Nearly everything goes out electronically as PDF files. This has the advantage of speed and allows me to make use of color, which in the days of yore, we could not use, knowing that our original report would be subjected to enough successive photocopy generations as to render it indistinguishable from, say, the Dead Sea Scrolls. Not to mention the cost of envelopes and postage.
Acrobat also allows me to set a number of different security levels. I can password-encrypt the file if I want. I can remove all personal metadata if I choose. I can prevent anyone from printing it or I can make it printable only in low resolution. I can even make it uneditable (which is usually a good idea). Another huge advantage is that I can (usually) edit other PDFs. I can arrange them into larger documents. I can add tables of content that contain links to sections in the document, etc. I can also embed Flash video or other rich media. At the risk of stating the obvious, Acrobat Reader won't let you do any of these things. It is simply a reader.
Illustrator and Photoshop are really Adobe's flagship products. They are complimentary in nature. Illustrator produces a type of graphics referred to as vector graphics. With vector images, resolution is never an issue. They will always produce clean, crisp lines, regardless of the scale. Photoshop, which I'll discuss a little later, is a raster graphics format, meaning that it rules the world of the pixel or picture element. Scaling a photographic image, such as a .jpg file, will eventually show you the individual pixels making up the image.
With Illustrator, you can scan an image and then lock it down and trace over it, creating your own artwork. It is really quite an amazing program and I cannot do it justice in a few paragraphs. However, because it does have a lot of functionality, it also has a bit of a learning curve. On a scale of 0-10, with 10 approximating the complexity of say, Autodesk's AutoCAD, Illustrator perhaps ranks as a 5-6. But it is well-worth the investment in time.
Photoshop has become the standard in every industry in which image creation and enhancement is concerned. As with Illustrator, it defies anyone to describe it in a few sentences, so I will leave it to the reader to visit the Adobe Web site to explore these products further. Instead, let me mention a few of the things I do with Photoshop Extended. This is a special version of Photoshop that will cost you a few dollars more. It adds critically important functionality, of which many are not even aware.
For example, Photoshop Extended has a Digital Communication in Medicine (DICOM) viewer that allows you to open those once-secret and ever-so-cryptic DICOM digital files of your patients' MRI or CT scans. Until Adobe included this brilliant feature, we were forced to endure the agony and frustration of learning how to navigate and control the bundled viewer the MRI facility burned onto the DVD they sent us. Agonizing for two reasons: no two viewer programs are the same, so you are endlessly forced to figure out how to manipulate new software; and most of these bundled viewers have very limited functionality and often won't even let you copy files to your hard disc. Moreover, very often the MRI center doesn't place all of the files on the CD or DVD into the viewer, so you can't see them at all. In other words, there may actually be 200 or so image files on the DVD, but there may be only 60 or so which have been made viewable in the program included on the DVD they provided you. I don't want to be second-guessed by the radiological techs who burn these things.
With Photoshop Extended, I bypass all these limitations and open the image files directly in Photoshop. There, I can not only view them much easier, I can also manipulate them and save them individually or in a series to the hard drive. Sometimes, for example, the images are too dark or too light, or the gamma might not be set correctly. I can even make an animation with them. If I wanted to move from the top of the cervical spine to the lower cervical spine with axial images, I would just select the ones I need, save them to a file in layers, and then convert the layers into an animation file that could be sent to the patient. You can even create a volumetric image by combining a series of images.
More often, though, I simply use the viewer as a more robust imaging and archival tool. With Photoshop's DICOM viewer, you also have access to all of the metadata in these file. With it, you can obtain all of the details of the image sequences, as well as the names of the physician who ordered the study, the one who interpreted it, the patient's vial statistics, etc. Photoshop will even let you save these files in redacted form.
Photoshop Extended also has tools that can be useful to researchers. You can measure distances or areas and input the data into tables right in Photoshop. This data can then be shared with statistical programs or Excel (which can also function as a decent statistical package in its own right).
The Programs in Action
My usual approach in making posters is to start in Illustrator. I make the file 36x48 inches so all of the artwork will go in at the right scale. Photos or scanned artwork starts in Photoshop, where it is cropped and cleaned up, and then placed in Illustrator. It has great text capability, so I do most of the work here, including gradient backgrounds and even drop shadows. Once I have the file as I want it, I simply save it as a PDF file. Those can easily be e-mailed to any commercial printer or service bureau. I usually just hand these files off to the attorneys and let them deal with them.
At the deposition, I will bring a black-and-white 8½ x 11-inch printed version to share with opposing counsel. Even at this stage, they can be very important because the opposition will very often discover that their defense is not nearly as bulletproof as they had presumed. Should the case settle at that point (and many do) the PDF will never have transmogrified into a tangible poster, saving that aspect of the cost of production. Compare that to when an airbrushed poster would cost an attorney $2,500 or so. And yes, I do charge for my time when making posters or animations.
One last recommendation is a really wonderful Web site called www.lynda.com. For a modest fee, they will provide you with online movies and tutorials that spare you the tedium of reading manuals. You can watch expert users apply methods learned only after years of personal discovery, allowing you to get up to speed painlessly.
There are a lot of other software programs one can use in a forensic practice. Perhaps in another article, I'll venture further into this. In the meantime, these three software applications will provide surprising flexibility and creativity. Beyond the boundaries of our discussion here, there are newsletters, Web sites, online social networks, and endless other things you can begin to do with a basic understanding of these software tools.
Click here for more information about Arthur Croft, DC, MS, MPH, FACO.