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Empathy and the expert witness

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Abstract

This paper argues that the expert witness who offers empathic testimony may significantly assist the trial lawyer in defending certain personal injury cases.

The author considers his own congenital deformity from a subjective and objective analysis of experience. He then uses this deformity and the analysis to illustrate empathic testimony. A courtroom example is given.

The conclusion argues the importance of permitting the experience of psychic trauma to speak for itself. It is also concluded that such experience and its analysis cannot be easily refuted as psychological projection. Trial lawyers could find the use of empathic testimony and its analysis of experience an effective tactic.

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Reference notes

  1. Coleman, Lee. “Psychiatry and Personal Injury: Exposing the Experts,” For the Defense. Feb. 1985.

  2. Blinder, “Psychiatric Analysis in Personal Injury Cases,” Trial, May 1986.

  3. Id., p. 75.

  4. Fed. R. Evid., 702.

  5. Northrop, F.C.S. The Complexity of Legal and Ethical Experience: Studies in the Method of Normative Subjects, 1959, p. 5.

  6. Id., p. 6.

  7. Stein, Edith. On the Problem of Empathy, 1964.

  8. Coleridge, Samuel T. Letter to William Sotherby (13 July 1802), Collected Letters of Samuel Taylor Coleridge, Vol. 11, 1956.

  9. Freud, Sigmund. “The Unconscious.” Standard Edition, xiv, pp. 159–215.

  10. Post, Steven L. “Origin, Elements, and Functions of Therapeutic Empathy.”International Journal of Psycho-Analysis, 1980. Basch, Michael Franz. “Empathic Understanding: A Review of the Concept and Some Theoretical Considerations.”Journal of the American Psychoanalytical Association, 1983.

  11. Berger, David M. “On the Way to Empathic Understanding.”American Journal of Psychotherapy, January 1985.

  12. Carey, Jonathan S. “Microtia: A Personal Case Study.”Aesthetic Plastic Surgery, September 1985.

  13. Delgado, Richard and McAllen, Peter. “The Moralist as Expert Witness.”Boston University Law Review, July 1982.

  14. Carey, Jonathan S. “Personal View.”British Medical Journal, 4 May 1985, p. 1348 (reprinted inAesthetic Plastic Surgery, September 1985) and Carey, Jonathan S. “Personal View.”British Medical Journal, December 1986.

  15. Carey, Jonathan S. “Personal View.”British Medical Journal, 4 May 1985, p. 1348.

  16. Fed. R. Evid., 704.

  17. Katz, Robert L. Empathy; Its Nature and Uses, 1963.

  18. MacGregor, Frances Cooke, Transformation and Identity: The Face and Plastic Surgery, 1974, p. xxiii.

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Authors and Affiliations

  1. Green College, University of Oxford, OX2 6HG, Oxford, England

    Jonathan Sinclair Carey

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  1. Jonathan Sinclair Carey
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Carey, J.S. Empathy and the expert witness. J Med Hum 8, 19–25 (1987). https://doi.org/10.1007/BF01119344

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  • DOI: https://doi.org/10.1007/BF01119344

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