Academy of Chiropractic’s
Lawyers PI Program


Narratives #30
 


From the Desk of:

Mark Studin DC, FASBE(C), DAAPM, DAAMLP 


"Research in Narratives"


I have read the reports of literally 100's of doctors who have taken courses with other consultants and spoken to many other "self proclaimed guru's" in the personal injury arena. When it comes to research in narrative reporting, they are all passionate and extremely outspoken on the issue. In fact, some make research the core of their "secret ingredient" for success in personal injury.


CAVEAT EMPORER

I have always been reluctant in recommending and utilizing research in narratives for many reason and over the last month, I have been speaking to leading attorneys representing trial lawyer associations nationally and judges to get the standards of the courts. I want to remind everyone that what we do in the medical-legal marketplace should NEVER be driven by what we, the doctors THINK is best. Nor should we be driven by what our personal experience has been in court in creating a standard for the profession. That is what historically happens and is the surest avenue towards abject failure.

Another avenue for failure is to ask a lawyer for their opinion and expect it to be the standard for the courts. All too often doctors call me with a very compelling argument because 1 or 2 lawyers have given them an opinion. When I query them, it invariably comes out that they are espousing the opinions of 1 or 2 and are trying to convince me that is the standard of the legal community. The standard of the legal community is only the rulings that come down, and they change all the time. What works for 1 lawyer, doesn't work for another and in the end, there are both successful and unsuccessful lawyers... be careful.

Regarding research, every lawyer and judge fully agrees that research is admissible in court if it is utilized to help you render your conclusion about the diagnosis, prognosis and treatment plan for your patient. HOWEVER...it comes with a price.

First, I need to explain the power of your testimony.

http://en.wikipedia.org/wiki/Testimony

In the law, testimony is a form of evidence that is obtained from a witness who makes a solemn statement or declaration of fact.

http://en.wikipedia.org/wiki/Expert_witness

An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialized knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness's specialized (scientific, technical or other) opinion about  evidence or fact issue within the scope of his expertise, referred to as the expert opinion, as an assistance to the fact-finder. Expert witnesses may also deliver expert evidence about facts from the domain of their expertise. At times, their testimony may be rebutted with a learned treatise, sometimes to the detriment of their reputations.

In Scots Law, Davie v Magistrates of Edinburgh (1953) provides authority that where a witness has particular knowledge or skills in an area being examined by the court, and has been called to court in order to elaborate on that area for the benefit of the court, that witness may give evidence of his opinion on that area.

Wikipedia, although not the highest standard for "all things factual," has articulated this issue succinctly and very accurately. When a treating doctor or an expert renders testimony, they are making a declaration of fact and it is that verbal opinion that is memorialized through transcripts and are the facts used in determining outcomes in court cases. Although your documents can be put into evidence, it is your explanation of those things that are the arbiters in decisions. 

 

Does anyone know what a "yoot" is" from the picture above?

 

Judges in all jurisdictions give you tremendous leeway in rendering your own opinion and in the end, it is why you are in court. You are there for your opinion to be memorialized and not to discuss someone else's opinions, conclusions or work.

 However as an expert or treating doctor, you may rely on accepted standards as evidenced through research or any accepted forms of documentation in practice. 

In court, there are usually three (3) levels of testimony. 

  1. Direct
  2. Cross Examination
  3. Re-Direct 

http://definitions.uslegal.com/d/direct-testimony/

 Direct testimony refers to the statements made by a party or the party's witness under oath. After a party or witness testifies, the other party gets the opportunity to ask questions on cross examination. After that, the judge will ask the party who has given the testimony about whether there is any reexamination (re-direct) so that the party can add more to their direct testimony in the light of questions asked on cross-examination. 

It is during the cross examination that research is utilized by a sharp defense lawyer to discredit you as an expert and it is their goal to make you "look the fool" in front of the jury that will be memorialized forever in court transcripts that is public record. 

Remember, this is not about the truth. It is about winning and the lawyers will do whatever they can, within the rules to win their case and you are nothing but an object (court fodder) whose reputation they don't care about. 

THEREFORE, it is your desire to keep your testimony as close to your own opinion as possible without attempting to bring in the opinion of others through research. Should you quote, footnote or utilize research, a very common tactic of the defense is to bring in the entire paper to cross examine you on making it incumbent upon you to literally "own" every word on the paper you are using to bolster your opinion. Should you not know every concept and word on the research, then the lawyer will have a very easy time discrediting you as an expert. Basically, they will grill you on the papers you present to find just 1 tiny area that you aren't versed on and use that against both you and your patient regardless if it has ZERO to do with their condition. 

It has to do with discrediting your testimony about their condition and if the lawyer can prove through cross examination that you don't fully understand the research you have relied on, then your opinion is flawed and will move to strike your entire testimony at best for the defense, or simply upon summation make you look the fool in their closing arguments to the jury. Either way, you and your patient stand a big chance on losing in spite of the injuries. 

Remember, it is not the research that wins cases, it is YOUR WORDS ABOUT YOUR OPINION...as a result, use research very sparingly if at all. 


Here is how I would utilize research: 

Create your narrative and any subject that you discuss in your report, annex the applicable research to the document with the poignant paragraphs highlighted. This way, the lawyer has your words and for settlement purposes, has the hard documentation to support your opinion and their argument in negotiations.   


In 32 years of practice, I have used research in narratives twice (2 times.) Yet I am sought out continually by lawyers nationally and never blinked at my previous fee of $5000 plus all expenses. When I tell them I no longer testify, they have offered me up to $10,000 for my testimony and they are fully aware that I NEVER use research in my reports. The point of sharing the fees with you is that they will pay mightily for the words, not the research when it comes to court. 

IF...I still practiced, I would charge ZERO and use that to leverage the legal community to flood my office with cases to care for. You have what they want NEED; your own opinion. 


AS LONG AS YOU ARE CREDENTIALED 

To find the research...I have already given it to you. It can be found on the bi-monthly flyers. There you will find almost every topic needed for the majority of cases you will encounter. Should there be a topic that needs to be covered, just let me know and we will cover that as well. Remember, due to copyright laws, we cannot supply you with the research papers, you need to get them. Scholar Google is one easy place to find what you need after you simply Google the article as many are free.