Lawyers PI Program

#135

 From the Desk of:
 Mark Studin DC, FASBE (C), DAAPM, DAAMLP
 
Testifying Part 3: The Trial”

 

When you go to testify as an expert, the first thing you have to remember is that no one in the room knows more about the spine and nervous system than you. Not the lawyers, the judge, the court reporters or the jury; no one. Therefore, as the expert, you are in control of the entire room and the entire process. How you fare as an expert depends on how well you are prepared and how well you understand what is about to be explained. I am going to share with you generic concepts that are applicable in most, if not all, jurisdictions. However, you need to clarify any specific issues with the lead attorney in the case you are testifying at in order to ensure you have it correct.   
 
MEDICAL PROBABILITY
 
  1. The law requires that a medical expert give an opinion based solely on "reasonable medical certainty" or "reasonable medical probability." It is important to note that the legal definitions of these phrases are different than the medical definitions.
 
  1. In law, the two phrases are identical in meaning. The legal definition of the two phrases is simply that the doctor must feel that the opinion is, more likely than not, accurate. For example, if the doctor is asked based upon the reasonable medical certainty, whether the injuries were the result of the accident, the doctor need only feel that the accident was "more likely than not" the cause of the injury claimed in order to answer, "Yes."
 
  1. The law makes a legal distinction between "possibility" and "probability." Opinions based upon possibility are not necessarily admissible. Therefore, if the doctor uses any of the following phrases in connection with his/her opinion, such testimony may be stricken by the judge:
 
(1) It "might be" true.
(2) It "is possible."
(3) It "might have" that effect.
(4) It "could have" that effect.
 
Be definitive in your language. In summation, the lawyer will pull out of your testimony your exact words. You might testify for 5 hours and the lawyer will sum up your entire testimony in one phrase. He/She will quote, “The doctor said in her testimony that it is possible for the accident to have caused the bodily injury. Ladies and gentleman of the jury, while it is possible, it is also possible that it didn’t.” This is the foundation for losing a case and although you are not there to win or lose the case, you are there to convey the truth in as unambiguous a way as possible.
 
  1. While there must be more than a bare possibility, the law does recognize that a degree of uncertainty is present in almost every medical opinion. One court has said, "It is consistent for a doctor to admit an element of speculation and still be convinced that an accident is more likely than not the cause of the injury." Also, "circumstantial evidence" is usable.
 
TESTIMONY REGARDING HISTORY OF PATIENT
 
The law allows a doctor who sees a patient for the purpose of examintion or treatment to tell the jury what history the patient gave and to relate any subjective complaints or findings of the patient. This is the foundation for being a treating doctor. You do not have to render physical care such as an adjustment or physical therapy. A history, examination and rendering of a medical opinion is all that is needed to be considered a treating doctor.
 
EXPLAINING MEDICAL TERMS
 
It is important that the medical expert explain the use of medical terminology like "loss of lordosis" or "scoliosis," as these things are foreign to the knowledge of the jury. Use the biggest words you can find that accurately describe the patient’s condition. Spondylolesthesis is acceptable because that is what it is. However, be prepared to explain every medical term in very simple language. It is acceptable to bring props or pictures to teach the jury. Remember, this is “show & tell” at the highest level and the more you teach and the easier you make it to understand, the greater the likelihood that the truth will come out, no matter the efforts of the defense lawyer.
 
HYPOTHETICAL QUESTIONS
 
  1. The law requires that a physician who does not have personal knowledge regarding the patient or the occurrence give his/her opinions through answers to hypothetical questions. A hypothetical question is one that asks the doctor to assume certain hypothetical facts and express an opinion based upon those facts contained in the question without specifically referring to a particular patient. Make sure you fully understand the hypothetical situation. It is perfectly allowable to ask for the question to be repeated. In fact, that is a tactic I employ often when I do not like the question or feel that the question will render a misleading answer. I simply request that the lawyer ask the question again or state that I don’t understand the question. Invariably, the lawyer will ask the question in a different manner, allowing me to go in the direction I choose in order to answer the question.
 
  1. The law requires, with regard to answering hypothetical questions, that the witness base his/her answer on the facts contained in the hypothetical question.
 
CROSS-EXAMINATION OF THE MEDICAL EXPERT
 
  1. "YES" AND "NO" QUESTIONS
 
If a question is phrased so that only a yes or no answer is expected, the witness must answer the question, but may ask the judge whether he/she can explain. If the medical expert feels that he/she cannot answer a question with a yes or a no, the witness has the right to respond that the question cannot be answered with a yes or no response. However, when being cross-examined, the witness should attempt to simply answer with a yes or a no as often as possible. The less you say, the less testimony there will be to attack. Expand when necessary, but try to limit this option.
 
  1. ATTACK ON QUALIFICATIONS
 
Defense attorneys will sometimes attack the medical expert's qualifications to offer an opinion or to treat a particular type of medical problem. Questions suggesting that a specialist in the field would be in a better position to treat the patient or give an opinion on the matter are not uncommon. The law, however, does not make a distinction as to the qualifications of an expert physician based upon medical specialties. Experience and training carry great weight as to the qualifications of a witness. This is another prime reason to ensure that your CV is up to date. Include all of your credentials and make sure it is accurate. Here is where it is going to be attacked and if not accurate, you can be held for perjury, as your CV is a legal document that you submit as accurate.
 
  1. ATTACK THROUGH BOOKS OR ARTICLES
 
  1. Some attorneys may use medical books or articles in an attempt to contradict the testimony of the expert physician. The approach is to ask whether the witness agrees with the statement found in some prestigious medical literature. The statement, of course, contradicts the previous testimony of the witness.
 
  1. Remember that before this procedure can be used, the medical expert must recognize the book as authoritative in its field or a standard text in the medical field. If the medical expert does not so recognize the book or article, the cross-examining lawyer may not read from it. Only if the medical expert recognizes the book or article as authoritative in the field and "relies" upon it, should he/she so admit it.
 
  1. The medical expert has the privilege of disagreeing with the opinions of the most eminent specialists, particularly where he/she is referring to a specific patient about whom he/she has a great deal of information and the book or article is speaking in generalities.
 
  1. ATTACK BASED ON PERSONAL INTEREST IN THE CASE
 
  1. On some occasions, the doctor may be attacked for being personally interested in a patient who he/she has been treating for many years. The best rule is to answer the question fully and frankly since sincere, frank testimony registers with the jury.
 
  1. On some occasions, the doctor may be questioned as to an interest in the case if the patient's bill has not been paid, the implication being that the doctor is assisting the patient to get a recovery in order to see that the bill gets paid. Even though the question is insulting, the doctor should answer forthright and calmly.
 
  1. The doctor may be asked about his or her fee for testifying in court with the implication that the doctor is a "paid witness." A reasonable answer is that you intend to bill based upon the amount of time involved in testifying as an expert in the case. No jury is going to consider that improper unless the amount is excessive.
 
  1. FLATTERY TECHNIQUE
 

Many lawyers attempt to mitigate the effect of the injuries by what is called "the flattery technique." Such statements as, "Doctor, you obtained a marvelous result with regard to your treatment," and the like are used. Keep in mind that the purpose of such commentary is to mitigate the extent of injuries. Also, remember that at times a good functional result is obtained, but serious injuries or disability still remain.

 

  1. "IT IS TOO EARLY TO TELL" TECHNIQUE

 

  1. Another common technique on cross-examination is to suggest that opinions regarding the future are speculative because it is too early to tell. Suggestions that there will be improvements are likewise made. The questions are always framed in terms of 100% certainty. For example, "Doctor, are you 100% certain that this patient will not make some improvement? Isn't it possible, doctor, that there will be improvement?" It is here that you need to be definitive about permanency if that is your prognosis. Although the patient will have some days that are better, a permanent problem will never go away and under the right conditions, will always come back. Those conditions can be as simple as walking or sneezing or can be more involved, such as lifting heavy objects and increasing intrathecal pressure.

 

  1. Obviously, no one can predict the future with 100% accuracy, but the law does not require such a test. The test is whether it is "more likely than not" in the doctor's opinion that these conditions will continue to exist. On the other hand, if the question can be answered with 100% certainty, be sure to give that answer.

 

  1. ATTACKING THE DOCTOR'S OPINION GENERALLY

 

  1. The main attack on cross-examination will be the defense attorney's attempt to quarrel with the diagnosis and treatment. There are various ways of doing that. Some of the most familiar are trying to say or imply that:

 

  1. The doctor based the diagnosis on purely subjective complaints.

  2. The doctor didn't have the complete and accurate case history.

  3. The doctor didn't know that this plaintiff had a prior injury.

  4. The plaintiff could be feigning or malingering and the doctor did not give any tests to rule out malingering.

 

  1. The defense attorney's approach also may be to imply that the symptoms are due to causes other than medical negligence or that some disease syndrome is giving rise to the various effects.

 

  1. ATTACKING THE HYPOTHETICAL ANSWER

 

If the hypothetical answer has been given, several well-known cross-examination techniques will probably be used.

 

These are:

 

  1. Two Schools of Thought: The suggestion is made that there is no real uniform view on the particular matter, but that there are, in fact, two substantial schools of thought in medicine on the subject. If this is true, there is no true standard of care and there can be no liability under such circumstances. A similar question asked is, "Isn't there a 'respectable minority' who would follow the actions that the defendant physician followed in this case?"

  2. Matter of Judgment: The approach here is to suggest that medicine is not an exact science and there is much judgment involved in treatment, implying that the defendant doctor's actions were simply a matter of judgment on his/her part. The suggestion is that it falls in the gray area of judgment where there are no true standards as to what ought to be done.

  3. Not What the Witness Would Have Done: Another attempt is to show that the witness is simply saying that he/she personally would not have done what this defendant doctor would have done. Again, this is an attempt to show that there are no real standards involved, but that simply the doctor personally disagrees. The test is whether the standards of medicine in that area are contrary to the actions of the defendant doctor, not what the personal approach of the witness might have been. 
  4. Attacking Assumptions Made: Here the approach is to show that the witness has answered the question based solely upon the facts assumed in the question. Therefore, if any of the facts are incorrect, the doctor's whole opinion must be incorrect. The cross-examiner then proceeds to attempt to show certain facts that have been assumed are not really accurate. The witness must be careful in answering these questions to be sure that the specific fact(s) referred to is a crucial fact that might change the opinion if it were different.

  5. Different Assumptions: The cross-examiner will invariably ask the witness to assume different facts than were originally contained in the hypothetical question and to express an opinion. This is permissible and the purpose is that the cross-examiner will assume all of the facts favorable to his or her case and ask the doctor to express an opinion. The doctor should be prepared to express opinions based upon facts favorable to the plaintiff and to express opinions based upon facts favorable to the defendant. Particular attention must be paid to the facts that the witness is being asked to assume, however.

  6. Even if Due Care, Same Result: Another approach commonly used is to ask whether it is true that even where due care and skill is being exercised, don't these results sometimes occur? The purpose of this question is to show that "it was just one of those things."

 

  1. MISCELLANEOUS POINTS

 

  1. UNDERSTAND THE QUESTION before you attempt to give an answer. You can't possibly give a truthful and accurate answer unless you understand the question. If you don't understand, ask the lawyer to repeat it. Keep a sharp lookout for questions with double meaning and questions that assume you have testified to a fact when you have not done so.

 

  1. DO NOT LOOK AT THE LAWYER FOR HELP when you are on the stand. You are on your own. You will not get any help from the judge either. If you look at the lawyer for your side when a question is asked on cross-examination or for his/her approval after answering a question, the jury is bound to notice and it will make a bad impression.

 

  1. DO NOT FENCE OR ARGUE WITH THE LAWYER for the opposing side. The lawyer has a right to question you and if you engage in smart talk or give evasive answers, the judge may reprimand you. Don't answer a question with a question unless the question you are asked is not clear.

 

  1. DO NOT LOSE YOUR TEMPER no matter how hard you are pressed. Lose your temper and you may lose the case. If you lose your temper, you have played right into the hands of the other side.

 

  1. BE COURTEOUS. Being courteous is one of the best ways to make a good impression on the court and jury. Be sure to answer, "Yes, sir/madam," and "No, sir/madam," and to address the judge as "Your Honor."

 

  1. IF ASKED WHETHER you have talked to the lawyer on your side or to an investigator, admit it freely. Remember you are not getting paid for your testimony, you are being reimbursed for the time you lose and your expenses.

 

  1. DO NOT BE AFRAID to look the jurors in the eyes and tell the story. Jurors are naturally sympathetic and want to hear what you have to say. Look at them most of the time and speak to them frankly and openly as you would to a friend or neighbor.

 

  1. GIVE A POSITIVE ANSWER when you can. If you were there and know what happened or didn't happen, don't be afraid to "swear" to it. You were "sworn" to tell the truth when you took the stand.

 

  1. UNDER THE LAW this case must be tried without the jury being advised as to whether any party is covered by liability insurance. Therefore, do not mention insurance in any way. Do not use the words "insurance," "insurance agent," "insurance adjuster," "insurance investigator," or any similar words, and do not identify any person as an "adjuster." You are also forbidden to say “IME” or “insurance doctor,” as it is grounds for a mistrial.  All of the attorneys know about this rule and they will not ask you any questions that require you to violate the law when you give your answer.