One of my favorite non-fiction books of all time is Bill Bryson’s A Short History of Nearly Everything. The book tackles every major branch of science in its effort to explain our existence on Earth, and it is absolutely riveting. In fact, if you want to add thirty minutes of childlike awe to your day, spend a couple weeks reading this book. Early on in the introduction, Bryson explains why he wanted to tackle science with this book:
“There seemed to be a mystifying universal conspiracy among textbook authors to make certain the material they dealt with never strayed too near the realm of the mildly interesting and was always at least a long-distance phone call from the frankly interesting…all of mine were written by men who held the interesting notion that everything became clear when expressed as a formula…so I grew up convinced that science was supremely dull, but suspecting that it needn’t be…”
Bryson proceeds to turn everything you ever thought you knew about science on its head and draw you in, leaving you wanting more of what you never thought could be so interesting. The fundamental problem Bryson is highlighting also occurs in trials involving issues of science. Jurors often struggle to keep their eyes open during expert testimony in medical malpractice cases and let’s not even get started on patent infringement cases involving science and technology. It’s time for attorneys to stop being the boring, old school textbook writers and learn from Bryson’s outstanding book. In this blog, I want to focus on a specific example in medical malpractice cases, highlighting Bryson’s chapter on bacteria and viruses. This is how Bryson describes viruses:
“A virus is a strange and unlovely entity – ‘a piece of nucleic acid surrounded by bad news’ in the memorable phrase of the Nobel laureate Peter Medawar. Smaller and simpler than bacteria, viruses aren’t themselves alive. In isolation they are inert and harmless. But introduce them into a suitable host and they burst into busyness – into life. About five thousand types of virus are known, and between them they afflict us with many hundreds of diseases, ranging from the flu and common cold to those that are most invidious to human well-being: smallpox, rabies, yellow fever, Ebola, polio and AIDS.
Viruses prosper by hijacking the genetic material of a living cell, and using it to produce more virus. They reproduce in a fanatical manner, then burst out in search of more cells to invade. Not being living organisms themselves, they can afford to be very simple. Many, including HIV, have ten genes or fewer, whereas even the simplest bacteria require several thousand. They are also very tiny, much too small to be seen with a conventional microscope…but they can do immense damage. Smallpox in the twentieth century alone killed an estimated 300 million people. They also have an unnerving capacity to burst upon the world in some new and startling form and then vanish against as quickly as they came.”
What Bryson does so well here is tell the story of the virus as if it is a nefarious character in the story of life. He uses descriptive and visual language to cast the virus as an actor, describing how it hijacks the genetic material of a living cell, reproduces in a fanatical manner, and then bursts out searching for more cells to invade. Turning the virus into a character and giving it agency and clear language to visualize it takes what might otherwise be boring textbook material and turns it into a story that draws you in. He creates critical turning points that keep you intrigued and wanting to know what happens next. For example, he notes that “Swine flu arose as a normal, non-lethal flu in the spring of 1918, but somehow over the following months – no one knows how or where – it mutated into something more severe.”
Efforts like this to turn science into story yield two key advantages in medical malpractice cases. First, it requires attorneys to dig into the scientific topic to figure out what is most intriguing about it, whether it is the question of how this connects to the individual lives or jurors, or to the larger story of society. In medicine, we know this can be done given the decades of popular medical dramas that have dominated weekday primetime hours. When attorneys start with this in mind, a story that keeps jurors interested and engaged naturally emerges. Descriptive language that helps jurors visualize what is happening makes it more memorable and easier to re-articulate once they get back to the deliberation room. After all, one of the biggest hurdles in jury trials on complex, scientific issues is the jurors’ inability to rearticulate the basic science when they discuss the issues in deliberations. When that problem arises, they might as well flip a coin to decide the case.
Second, the virus story, if told in a medical malpractice case involving a patient who died from sort of virus, changes the character focus. The plaintiff’s story in a malpractice case casts the plaintiff as the protagonist and the doctor as the antagonist. The story of the virus changes that arrangement, positioning the virus as the bad guy, which naturally makes the doctor the good guy, who is aligned with the other good guy (the patient).
We can see how impactful this science narrative is simply by turning on our television most weekday evenings and finding one of the many medical dramas that always seem to be on. The thing that has always entertained me about medical dramas is how their audience never seems bothered by the fact that nearly everything the doctors in those dramas do around patients is malpractice in some way, shape, or form. There is no initial tendency to see the doctors as the bad guys. The default position in those TV medical dramas is to see the doctor as the hero even when the plot line involves a doctor doing something totally outlandish (i.e. malpractice) to discover what no one else saw and cure the patient. A good narrative about the disease allows the jurors to find the same sense of satisfaction in your case as they do when consuming TV medical dramas. Even more important is the underlying medical story being told. Most medical dramas frame the doctor as the good guy and the medical condition as the elusive bad guy. The patient’s personal story, when there is one, only serves to better frame the doctor’s character. When the medical condition is the bad guy, how can you not root for the doctor?
It’s not just a matter of calling the medical condition the bad guy. Bryson gives us the missing piece by showing us how to develop captivating stories by using language to give agency to the condition and help jurors visualize the actions of the condition in troubling ways, the kind that cry out for a hero. In these situations, even when the doctor fails, it is easier to attribute it to the all-too-powerful villain we wish didn’t exist, but unfortunately does.
These are the kinds of steps attorneys need to take as they prepare their scientific cases for trial. Jurors don’t want textbooks. They want to hear interesting stories about how the world works.
