Academy of Chiropractic’s Lawyers PI Program
From the Desk of :
Mark Studin DC, FASBE (C), DAAPM, DAAMLP
“Depositions & Testimony”
The Admissibility and Use of Demonstrative Aids
Evidence can be classified in two broad categories: “demonstrative evidence” and “substantive evidence.” Demonstrative evidence is “that evidence addressed directly to the senses without intervention of testimony.” Such evidence is concerned with real objects such as charts, graphs, videotape, and computer animation, which illustrate some verbal testimony. This type of evidence carries no independent probative value, and its primary purpose is to illustrate the testimony of a witness to help the jurors understand difficult factual issues.
In contrast, substantive evidence is evidence “adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness, or of corroborating his testimony.”
Demonstrative evidence is evidence in the form of a presentationof an object. This is, as opposed to real evidence, testimony, or other forms of evidence used at trial.
Examples of demonstrative evidence includephotos,x-rays,videotapes,movies,sound recordings, diagrams,forensic animation,maps,drawings,graphs,animation,simulations, and models. It is useful for assisting a finder of fact(fact-finder) in establishing context among the facts presented in a case. To be admissible, a demonstrative exhibit must “fairly and accurately” represent the real object at the relevant time.
Other examples of demonstrative evidence include case specific medical exhibits, colorized diagnostic films, general anatomy and surgery exhibits. These forms of demonstrative evidence are commonly used as a personal injury lawyer resource. Demonstrative evidence with dramatic impact can maximize the value of a case by effectively depicting catastrophic/traumatic injuries, complex surgical procedures, and surgical mistakes or summarize injuries suffered by an individual. These examples of demonstrative evidence are used for settlement conferences, arbitration, mediation, medical expert depositions and trial presentations.
Your goal when testifying is to have an opinion based on demonstrative evidence. Too many of you still think that your treatment is the center of your testimony and what care you provided is the arbiter for success in the court room. The reality is your treatment has virtually no place in a medical – legal arena beyond certifying that care was necessary for demonstrable bodily injury.
Too many of you believe that you will never get to court. As the years go on more and more of our doctors are ending up on the witness stand because that is where I have positioned you. We have finally gotten the legal community to realize that you are the “real deal” as experts and as such the attorneys are accepting you at that level and bringing you to court to help them win their cases. We can discuss Colossus settlements all day long… however, unless the lawyer feels comfortable in bringing you to court there’s a good chance they will never start with you. It is my goal to prepare you from settlement to verdict and this consultation will help fill in many issues regarding your actions in depositions and courtroom testimony.
I cannot underscore strongly enough for you to virtually ignore your treatment. No one cares in the entire legal process because your treatment has no bearing on the outcome of settlement, deposition testimony or verdict. All that matters is what bodily injury occurred and what has persisted after a reasonable course of care has concluded.
To that effect you must focus your reports and testimony as to the causality of the injuries and produce the evidence demonstrably as to what was injured. As an example one Dr. was subpoenaed to testify on a case that he started treating 2011 for an accident that occurred in 2008. This Dr., who I consider one of the smarter doctors I work with spent 5 minutes trying to explain the case to me and it all surrounded on how the patient responded to treatment. I rudely interrupted this Dr. and said to him “no one cares about your treatment; not the lawyers, not the judge and not the jury.” All that matters is what was injured and what still persists.
My explanation to this Dr. is the perfect example of how you need to prepare yourself and your case for either deposition or trial. I explained to this Dr. that as with any patient you must have copies of all records including images both prior to the accident, if available and between the 2008 accident date and the first time he saw this patient 2011. The key to this case as in any case is what was present prior to the trauma 2008 and what was new that intiated with that accident (causality). Everything that has happened between 2011 today will be as sequela to that 2008 accident and is it clinically consistent? This also includes handling any reasonable gaps in care, which could prevent the case from moving on.
The evidence required has to be demonstrable; what can a jury see. That equates to either x-rays or MRIs in 2008 which will show if any demonstrable bodily injury occurred; degeneration, herniations or any other pathology that occurred as sequella since that point in time. Degeneration, lack of biomechanical integrity or symptoms both prior and post trauma will be the arbiter for causality. In 2011, provided there was no significant gaps in care, any evidence will have to be consistent with a degenerative scenario over time. However, if there were any significant gaps in care this Dr. would not be able to certify with a great degree of certainty as to definite causality because over a 7 year period, that becomes challenging.
Therefore, there is no room in any explanation for treatment of any kind because the outcome has nothing to do with your care, only what has persisted AFTER your care has concluded. Your treatment, or any treatment simply certifies the boldily injuries needed treatment, but does not demonstrably show them. This is simply an exercise of presenting demonstrable evidence from the time of the accident (with hopefully previous images) and current x-rays, MRIs or digitized images showing further sequela or degeneration. The clinical findings in a physical examination verifies loss of function that needs to be corroborated with the patient’s explanation of both duties under duress and persistent loss of function.
We get back to the basics of the BIG 3: Causality, Bodily Injury and Persistent Functional Loss.
Although this case includes a 3 year gap in care, most cases don’t, which makes your job that much simpler. The goal of this exercise is to highlight that you must be able to provide “show and tell.” Let me see it and if you can’t, you have to create a picture with your clinical evaluation that makes it a much more difficult journey in the legal arena. This is also why x-ray digitizing becomes critical because many trauma patients have normal MRI’s with respect to herniations, but significant connective tissue disorders that are demonstrable via digitizing.