20Q: Forensic Audiology

1. I have to admit that I don’t know much about the history of forensic audiology. I assume it often involves being an expert witness?

You are correct. I’m not entirely certain when we had our first forensic audiologists, but the use of experts in legal matters has an ancient heritage. In Babylonia, experts were used to determine pregnancy, virginity, and fertility. The Romans legally recognized experts in midwifery, handwriting, and land surveying. Nix (1999) presents that expert witnesses appear sparingly in American and English court records beginning in 1782. William Murray, the 1^st Earl of Mansfield, was the Lord Chief Justice of the King’s Bench trying the case of Folkes v. Chadd in British court. The case consisted of a landowner purposeful deconstructing a sea wall and the unintended decaying of a harbor. Lord Mansfield allowed the expert testimony of John Smeaton, a civil engineer, to assist the court in understanding the silting of Wells Harbor in Norfolk by providing a scientific rationale behind the proposed legislation. The decision by the English Court to allow for an expert to provide contextual background and detail on a case is often cited as the root of modern rules on expert testimony. In the past 250 years, the use of expert witnesses and the admissibility of their testimony and scientific evidence has developed significantly in the Western court system.

Ryskamp (2020) states that the use of experts to testify in U.S. court cases did not become widespread until the twentieth century. The first documented use of experts in the United States was 1923 in the case of Frye v. United States. This changed both criminal and civil law by addressing not only an issue concerning criminal cases and the use of polygraph tests but also the use of expert witness testimony. Charged with 2nd-degree murder, James Alfonso Frye attempted to use an expert witness at a time when polygraphs were still suspect, and the Court denied expert testimony. The court stated that expert testimony is only allowed if founded upon Methods, Principles, and Procedures agreed upon as valid in the scientific community. In Frye’s defense, attorneys attempted to introduce both the results of a polygraph test to demonstrate Frye’s innocence and the testimony of an expert witness to explain those results. The court rejected the expert’s testimony stating:

“While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

By making this statement, the Frye court not only explained its own reasoning but also set the standard by which expert witnesses would be evaluated for years to come. Courts, however, struggled to determine whether the Frye ruling applied to all experts and whether it applied to both civil and criminal cases. Many had trouble interpreting “general acceptance” in a clear and consistent manner. The use of experts became clearly defined with the 1993 ruling in the Daubert v. Merrell Dow Pharmaceuticals, Inc case.

2. That wasn’t that long ago. What made that case significant?

Because of that case, we now have what is called the Daubert Rule. The Daubert test relates to the quality and relevance of the information being presented by an expert witness. While there is interesting legal history that has digested into the legal precedent for the Daubert test, it relates to the Federal Rule of Evidence 702. Matson (2013) summarizes this rule in that reliable expert testimony must be based on scientific fact and not subjective belief or opinion. The outcome of the Daubert case resulted in a ruling that the judge must make a finding to determine if the expert’s methodology was sound. To determine if the expert’s judgment is sound, there are four factors that are required to meet the test of the Daubert Rule. These determine if the expert’s testimony, either written or in person, is admissible in court. The specific criteria used by judges to determine if it is admissible in court are as follows: 1) The science can and has been tested; 2) The science has been subjected to peer review and publication; 3) The known or potential error rate of the science has been determined, and 4) The general acceptance of the science within the relevant scientific community is documented.

In our U.S. system, an expert witness is a person whose opinion, by virtue of education, training, certification, skills, or experience, is accepted by a judge as an expert in a particular area of expertise. If the judge does not believe that these four criteria are met, then the expert does not pass the Daubert test, and their testimony will be excluded from consideration in the case.

3. Do you have to spend some time in Law School to learn how to be a forensic audiologist?

The basic answer to this question is no. Audiologists are not attorneys, nor do the attorneys that hire audiologists as experts want them to be attorneys. In forensic audiology, the expert audiologist is frequently opening on the relationship of hearing, hearing loss, tinnitus, hyperacusis, balance, and auditory processing to injury and causation. Carlucci (2021) states that the opportunities to work in forensic audiology are as many as the subspecialties: medical audiology, industrial audiology, pediatric audiology, educational audiology, manufacturing, cochlear implants, and aural rehabilitation.

It is necessary, however, to be familiar with a general legal vocabulary as often the legal definition of terms is different from the usual and customary. You might know many of these from watching TV shows, but here is a quick review: 

• Judge: A judge is a public officer authorized to hear and decide cases in a court of law; a magistrate charged with the administration of justice. 
• Jury: A jury is a sworn body of people (the jurors) convened to render an impartial verdict (a finding of fact on a question) officially submitted to them by a court or to set a penalty or judgment. 
• Plaintiff: A plaintiff is the party who initiates a lawsuit (or action) before a court. By doing so, the plaintiff seeks a legal remedy for some sort of fault or injury against them. If the case is successfully litigated, the court will issue judgment in favor of the plaintiff and order payment of damages to the recipient of the lawsuit.
• Defendant: The person defending or denying the lawsuit that is being brought against them. It is the party against whom relief or recovery is sought in an action or suit or the accused in a criminal case. In every legal action, whether civil or criminal, there are two sides. The person suing is the plaintiff, and the person against whom the suit is brought is the defendant.
• Prosecutor: A prosecutor is an elected official and the legal party responsible for presenting the case in a criminal trial against an individual accused of breaking the law.

4. What kinds of legal cases use forensic audiologists?

First, there are two general types of cases. There are criminal and civil cases, and forensic audiologists will likely be involved in more civil cases than criminal cases.

• Criminal Case: A criminal case is a court case in which someone is tried for engaging in activity that has been outlawed by the legislature or the government because it is deemed antisocial in nature. The accused in such a case is considered to have committed a crime against the government in addition to a crime against an individual.
• Civil Case: Civil cases involve disputes between people or businesses over money or some injury to personal rights. A civil case usually begins when one person or business (the plaintiff) claims to have been harmed by the actions of another person or business (the defendant).

While there are cases where people with hearing impairment are criminals in cases, these do not seem to come up very often. When these cases are presented, the expert opinion offered by the audiologist can make a huge difference in the case, either for the defense or prosecution. 

A criminal case defense example is of a 67-year-old hearing-impaired man with diabetes that had been drinking all day. He did not see very well due to his diabetes, and he had a bilateral moderate to severe sensorineural hearing loss. There was a recent hearing evaluation, and a monaural hearing aid fit to the right ear with a full shell in-the-ear device. That day he was having an intense argument with his wife, found his 38 Special revolver, and threatened his wife with it as he drank a bit more. The wife got scared and called the police. When the police arrived, not knowing the situation, they stayed about a ½ a block away. At that point, he was walking out of his garage and waving around his 38 Special. The police yelled, “Put down your weapon.” He did not. They then got a bullhorn and yelled again, with no change. They then fired and shot him in the leg. I was challenged to determine if this individual could hear the commands of the police officers ½ block away. This was a relatively easy case as it was found that not only were the officers quite a distance for someone with this amount of hearing loss but also the wax trap was full in his hearing aid. My opinion was that he would not have heard the officers, and likely he did not recognize the situation due to his visual impairment. While he still went to jail, it was for a lesser time as he could not have heard the officers’ commands.

As forensic audiologists, we see mostly civil cases which often deal with various types of injury that create hearing loss and tinnitus. These may be airbag deployment or whiplash injuries, hearing conservation concerns, balance issues, congenital deafness, Americans with Disabilities Act, audiology malpractice, disputes between audiology practice owners, and likely a myriad of other concerns where we can serve as experts to the legal system.

5. All interesting, but I’m still not sure what exactly is a forensic audiologist?

Forensic audiology is the use of audiologic training, experience, and skills to assist attorneys in obtaining a just legal settlement for their clients. Recently, Carlucci (2021) offered a definition of forensic audiology:

“The term forensic conveys the use of science or technology in the investigation and establishment of facts and evidence in a court of law. A forensic expert witness is an individual with knowledge, training or education, and experience who is engaged to provide testimony and render opinions and conclusions concerning legal actions in their selected field.”

A forensic audiologist may be a clinician that sees the attorneys’ client as a patient, or they may simply review the evaluations of colleagues to investigate the hearing loss, tinnitus, and other audio-vestibular issues. Since I have sold my practice, I review clinical reports and other medical data to make my opinions rather than see the patients. Mangraviti et al. (2018a) further states that the role of a legal expert witness is to help the trier of fact. Thus, a forensic audiologist is an individual that teaches the jury or a judge to understand the facts about a legal case that they would not normally be able to figure out on their own. The trier of fact is a jury in jury trials and a judge in bench trials. In a jury trial, the jury establishes the facts, and the judge rules on the law. A “bench trial” is where the judge decides the facts and the matters of law.

6. When an attorney calls a forensic audiologist to possibly work on a case, what is usually discussed?

Attorneys want to know if you can help them win the dance contest in court as they interact with the facts of their case. They typically present a brief overview of the case by phone. This call discusses the general nature of the case, such as an automobile accident with airbags deployed, and the nature of the injuries, for example, hearing loss and/or tinnitus. The expert needs to decide whether they are qualified to provide the expertise necessary to allow the court to arrive at a just settlement. Since 97% of all civil legal cases are decided by mediation, the work will most likely consist of writing a report on the objective facts of the case. Additionally, the timeline necessary will also be discussed as these timelines are often dictated by the court and may change according to other items on the docket. The concern for the forensic audiologist is to decide if their expertise meets the needs of the case where an otolaryngologist or an engineer would be of more value and if their schedule is flexible enough for the possible court modifications.

A forensic audiologist hired as an expert witness for a legal case might be asked to do any of the following activities:

• Review Documents. Reviewing legal and medical documents are necessary to form an opinion of just what is involved with the case. These documents will determine what the facts are and whether the action resulted in a specific positive or negative outcome. In either situation, there is an opinion that must be objective and backed up by facts. 
• Investigate. In many cases, an investigation is essential to forming an opinion. In audiology cases, it may be necessary to examine the patient, but more often than not, there have been examinations conducted by competent colleagues, and a review of the results is only needed.
• Perform Research. Depending on the type of case, it may be necessary to conduct an extensive literature review to back up opinions with literature and other documentation.
• Form an Opinion and Orally present that to the Attorney. The counsel that hires a forensic audiologist will want to know what your opinion is, based upon the facts that you have reviewed. If the opinion in not favorable to the case, the attorney may discharge the audiologist after a preliminary opinion. If the audiology opinion is favorable to the case, a full report may be required and disclosed to the opposition so the case may be settled.
• Draft a Written Report Expressing Your Opinions. Usually, the attorney will ask for a report containing the audiologist’s opinion, the basis of those opinions, and a summary of the audiologist’s qualifications. These reports are required in cases litigated in federal court.
• Give a Sworn Deposition. On occasion, forensic audiologists must offer sworn testimony in a deposition to “preserve the opinion” in the case. This deposition might be a recorded video, a Zoom call, or in person. The audiologist will offer friendly testimony to questions presented by the attorney that hired them in the case and cross-examination by the opposition. In the cross-examination, the opposition is attempting to find out information about the audiologist and their opinions in the case. Cases often settle after the expert’s deposition before a trial is conducted.
• Assist Attorneys in Preparing to Question Opposing Experts. In this situation, the audiologist will assist the attorney in anticipation of possible weaknesses in the opposing argument and point out the specific vulnerabilities suggesting line of questioning for their cross-examination.
• Testify at Trial. Testifying at trial is a rare occurrence as most civil cases are settled before trial. While most cases settle, the forensic audiologist must be prepared to testify if the case does not settle.

Clinicians should take an expert witness course that provides a legal perspective on how to prepare credentials, offers perspective to those not familiar with the legal profession, and an overview of the judicial system and the place of expert witnesses within it.

11. What do Attorneys look for when hiring an expert?

Attorneys look for experts with an impeccable reputation and an organized, professional image. Prospective experts often unknowingly make mistakes that project a far different image to legal professionals. Simple issues such as typos on a CV or unpolished marketing material on a website can be issues that will cause an attorney not to choose a particular professional as an expert for their case. Especially in our profession, do not use the terms speech and hearing or communication disorders as these do not specify the particular area of expertise. While these terms are used loosely about our profession, better terms would be speech pathology or audiology, as attorneys know these professions and have at least an idea regarding the expertise they are seeking for their case.

12. What are some favorable images that attorneys appreciate?

• Knowledge and competence. Impeccable credentials, honors and awards, numerous publications, and either a current or previous professor or adjunct. 
• Successful and in demand. Charging a fee on the high side of what is reasonable indicates that you are in demand. Have a professional look to your retention agreement and ask for funds upfront. These are all considered usual and customary components of being retained as an expert for a case.
• Polish. While it may seem trivial, a flawless CV, websites, and marketing material are all part of the image that will make the difference whether a particular expert is retained.
• Honesty. Have a record and be honest regarding opinions favorable to either the party, both plaintiffs and defendants. Be upfront regarding availability to testify. Do not offer an opinion on the initial call. Usually, an initial call will give the expert an idea of what the case is about and certainly does not offer enough information to decide on an opinion.
• Qualified. If you worked at an impressive clinic with famous audiologists or worked on a special project, these are considered an asset of an expert looking to be retained for a case.
• Objective. The best experts are objective in their interpretation of the facts and records presented.

13. Reputation appears to be a major component of being a forensic audiologist. Does it matter?

The short answer is that reputation matters. An expert with a bad reputation is not hired for many reasons, but one of the biggest are if there are legal charges pending against them, if they have committed a felony, and even some misdemeanors will preclude your capability to serve in most cases. When the other side finds out, they can discredit the expert and often win the case. Other issues that makeup reputation are as follows:

• Reviews and develops opinions on cases objectively, regardless of who retained them.
• Experts need to be easy to work with by being available and accessible by answering the phone or by returning phone calls timely.
• Meeting deadlines without complaining, not overcommitted to other cases, and willing to testify for both plaintiffs and defendants.
• Qualified by both training and relevant experience and well prepared for depositions and trials with the ability to simplify complex material and communicate it to a fact-finder or jury.
• The expert is articulate with a passion for the subject and withstands a cross-examination with a composed demeanor.
• Present themselves with ethical inherent integrity, honesty, and credibility writing clear and understandable reports.
• Has excellent word-of-mouth from other attorneys.

14. Let’s get back to the case itself. What are the stages of a civil legal case?

We are audiologists, so we are usually involved with the stages of denial and the degree of hearing loss, not in the stages of a legal battle. These are the stages that a case goes through from beginning to end. Each stage has specific timelines and considerations for gaining information by both parties. These stages include:

• Complaint. The beginning of the lawsuit.
• Answering the Complaint. The defense rebuttal to the complaint.
• Discovery Stage. Each side has a time period to obtain extra information, medical records, experts to explain the situation, and the records.
• Motion Stage. There are various motions that can be presented to include or exclude the expert, or even case dismissal, etc.
• Settlement and Mediation Stage. In this stage, the parties have both decided to interact with each other, either through their attorneys or with a mediator, to arrive at a mutual agreement.
• Trial. When a settlement does not occur, there will be a trial with judge, jury, Defendant, Plaintiff, and counsel for the Defense and Plaintiff.
• Appeal. A panel of three judges that review the case to see if there are grounds for retrial or modification of the trial result.

15. What exactly is a Legal Complaint?

Lawsuits all begin with a formal Complaint, and it’s a serious document. This Complaint is filed with the court, and its purpose is to define the details of the lawsuit and put the defendant on notice as to why they are being sued. Mangraviti et al. (2018b) describes the Complaint as a document that sets out, in a plain and simple manner, the facts upon which the plaintiff’s claim for “relief” is based. It names the Court, the case number, and the names of the parties involved in the lawsuit as well as numbered paragraphs that state the facts alleged by the plaintiff and concludes with a “prayer” for relief. Often it demands a jury trial (only occurring 3% of the time) and presents the Firm as well as the signatures of the attorneys representing the Plaintiff. For the forensic audiologist, it is always a good idea to request a copy of the complaint as it allows for a better understanding of the case and assists in deciding the existence of a conflict of interest.

The defendant then has a period (usually 20-30 days depending upon the state) to “Answer the Complaint,” rebutting the rationale for the lawsuit and outline the case as to why the suit is unfair or unsubstantiated.

16. You mentioned that there is a discovery phase?

The discovery stage of a legal case is prospecting for gold. In legalese, “discovery” refers to the exchange of legal information and the known facts of a particular case. Attorneys describe the discovery period process as a time when parties to a lawsuit can find out information held by the other party of the lawsuit, third party witnesses (such as the forensic audiologist), or other entities. This information can be worth real gold to a case if certain issues are discovered in the process that finds a parties’ proof of their position. There are various methods used to “discover” this golden information, such as depositions, interrogatories (formal questions asked to the parties of the suit, their experts, and entities), requests for admissions (if a case is fit for trial or could be dismissed), requests for the production of documents, inspection of real evidence, and medical examinations.

These methods are fair game for each side to explore. Forensic audiologists need to be careful with this process, as in some states where everything that is communicated with the attorney is discoverable by the other side, even issues that you do not want the other side to know. In most states, drafts of an expert report are considered private between the attorney and the expert until the report is finalized. At that time, it is discoverable by all parties on the other side.

Interrogatories are a part of the discovery process and the most common method of obtaining information from the opposing party to a lawsuit. They are written questions posed to the opposing party about specifics of the case for which a response is required under conditions specified by the court. These written questions further explain the details of a case and allows each party to the suit to obtain information that is possessed by the opposition. Individuals receiving interrogatories in connection with a legal matter must respond to the court within a specified period, usually 20-30 days under the penalty of perjury. Forensic audiologists may be hired as either a consultant or an expert witness to assist attorneys in their responses to these questions relative to injuries and/or specific situations created by the injuries.

17. Since most of the cases settle before deposition or trial, the report would seem to be extremely important. What is included?

It’s a bit like being given a scenario and writing a paper on the situation and supporting your opinion with literature and your clinical experience. It is taking all the education, training, and clinical experience and applying it to the situation, and then supporting the ultimate opinion with literature.

There is an organization standard for the reports that includes specific sections on the following:

• Cover Page. The type of report is indicated, such as a Draft Expert Report, Final Expert Report, Medical Necessity Report, with usually with the case numbers and the court to which the case is being tried.
• Table of Contents
• Introduction. The introduction is a section that describes the attorney or agency that engaged the expert, their location, the date of retention, and the contents of the report.
• Qualifications. This area should present the overall qualifications of the expert.
• The Accident/Incident. This is a presentation of the facts in the case as the expert understands them.
• Documents Reviewed. All of the non-medical documents that were reviewed, letters, police accident complaints, interrogatories, other expert reports, insurance statements, etc.
• Medical Documents Reviewed. Medical reports from various physicians, the treatment records, medications provided, recommendations.

There are usually other sections to the report, but the format for the rest of the report will depend upon the type of case and the circumstances. 

18. And then there might be a deposition? I suspect that that can be grueling?

As I mentioned earlier, close to 97% of all civil cases settle prior to expert witnesses being called to trial. Thus, the preponderance of testimony will be given in a deposition, and yes, at times it can be tension provoking. The deposition is a powerful type of discovery, and any person can be deposed, and they do not need to be a party to the lawsuit or an expert. For the forensic audiologist, it creates extreme importance on being effective during an expert deposition.

In a deposition, the person being deposed is called the “deponent.” The deponent’s testimony is taken under oath and transcribed by a professional, which may be virtual, in your office, or in the office of the transcriber. Usually, the only people in the room are the attorney that hired you as an expert, the opposing counsel, and the transcription recorder. There is no jury to listen to your testimony. Mangraviti et al. (2018b) describes two types of depositions that experts will face:

1. Preservation of Evidence. These depositions are taken as the attorney may want to use it in lieu of having the expert appear live. This avoids the expenses for the witness to travel to the site of the trial. Since a preservation of evidence resembles a trial, the expert must be prepared for both direct testimony (usually friendly) and cross-examination (usually an interrogation).
2. Discovery Depositions. For a discovery deposition, the expert will be deposed by the opposing counsel to find out as much as possible. Most of these questions will be open-ended to get the expert to talk as much as possible about the opinions presented in their report and what led them to their conclusions.

Fields (2013) states that the following is essential in virtually all depositions:

• Tell the truth, as it is the expert’s legal and moral obligation.
• Answer only the question asked by the opposing counsel.
• Avoid arguing with the opposing counsel.
• Strive for precise language.
• Use humor with extreme caution.
• Take time to ensure that the question is understood before answering.

19. I’d like to hear more about the cross-examination. How does that work?

As part of a deposition or trial, the expert witness will be exposed to direct and cross-examination. In general, these question/answer interviews are designed to present the facts in the case and to explain the specific injuries, their extent, and possible remediation.

In the direct examination, the attorney that has retained the expert will ask friendly questions that have been considered in previous discussions between the expert and the attorney. The retention attorney will outline his case and his strategy within these questions with the assistance of the expert. This direct examination of the expert is usually an easy interaction where the attorney brings out the expertise of the expert.

While the direct examination is usually an easy presentation of the facts and their implications, the expert cross-examination is usually the total opposite. In the cross-examination the opposition attorney’s job is to discredit the expert witness and to demonstrate that their testimony is not credible and/or has no relevance to the case. They need to demonstrate that this witness does not meet the Daubert Rule. In fact, some legal definitions of this process describe it as an interrogation, not questioning. Counsel for the opposition will read and study the entire case file and prepare for hours and even days for the cross-examination of an expert. To perform well in cross-examination, an expert witness needs to understand that the cross-examination comes from the opposing attorney’s standpoint. Mangraviti et al. (2018) states that the opposing counsel will have two major goals during the cross-examination session:

• To lessen the credibility of the witness and,
• To use the expert witness, where possible, to bolster their own case.

He further states that all trials ultimately come down to one issue and one issue only. The issue is credibility. An expert’s opinion is only as strong as their credibility. Opposing counsel will use cross-examination as a vehicle to attack and lessen the expert’s credibility. This is most commonly done by attacking an expert’s qualifications and expertise, exposing any bias, impeaching the witness with prior statements in writings, methodology, facts, and data. Cross-examination by an attorney is more like an interrogation than a question/answer period. For example, even when you have stated something and supported it with good backup literature and examples, they may come back to you with “Is it possible that he could have been exposed to high-intensity noise? These are trick questions designed to see how much the expert knows about the situation. When asked this question, my answer was, “Yes, it is possible, but the evidence, in this case, does not support that possibility.” The opposing attorney is attempting to see if you will take the bait by answering more than necessary to see if they can get you to admit to a hypothetical untruth which will discredit your testimony. 

Indeed, a cross-examination is not for the faint at heart and usually is the hardest part of forensic audiology. While confrontation is enjoyed by some, survival of a well-executed legal cross-examination requires an expert that has conviction in their well-researched opinion and, as I mentioned earlier, a very thick skin.

20. Tell me about the big show - the trial.

The trial is the big show for the case. It is the time when the retaining counsel (the one that hired you) and the opposing counsel do their magic legal maneuvers to try to win the case. Trial testimony differs significantly from deposition testimony and needs to be understood in terms of good direct testimony when questioned by retaining counsel and offers effective resistance to the cross-examination. 

Fields (2013) indicates a tactic that works rather well for experts. There is comfort in staying within the discipline. When in the discipline, replete with technical terms and concepts highly specific to the expert’s field, it makes it difficult for the opposing attorney. This tactic takes up time, makes the cross-examination follow-up questions difficult, and distracts some attorneys from their cross-examination plan. Fields further recommends that the experts stay on their Expert Island.