Rules for Providing Good Testimony in Court
PRACTICE MANAGEMENT
William Owens
DC, DAAMLP
Dr. William Owens, Jr. is currently in private practice in Buffalo, New York. His practice employs four doctors of chiropractic and three doctors of physical therapy. He is president and CEO of the National Spine Management Group, LLC, clinical director of the Fellowship in Spinal Biomechanics and Trauma, and oversees a oneyear certification in advanced imaging. Additionally, Dr. Owens is an adjunct faculty member in family medicine at the State University of New York at Buffalo Jacobs School of Medicine and Cleveland University Kansas City College of Chiropractic. He can be reached at 716-228-3847 or wowens a nationalspinemanagement.com.
A jury trial is never won on cross-examination, but it can surely be lost... Evidence should be objective, science-based, and easily explained.
If you are a doctor of chiropractic diagnosing and treating personal injury patients, you eventually will be asked to provide your opinion under oath in the form of a deposition or trial. In the beginning, that request can be as intimidating as the actual testimony itself. You may be providing testimony as a treating doctor or as an expert. In either case, it is important to understand the rules of the process, especially during a jury trial.
I have been in practice for 25 years and have significant experience in giving testimony. I wanted to write this article to help those of you who also are in the trenches
and doing the work. It is important for those testifying regularly in court to teach others.
1. Begin with the End in Mind - This is the most important step since it is where it all starts. From the very first day a patient walks into your practice after an injury, you likely will be asked to provide your professional opinion on causality, bodily injury, and persistent functional loss. Most of the time, well-written objective reports will suffice, but other times, the case will require oral testimony. The history of your encounter with the patient will be set in those reports; they cannot be altered, so be thorough right from the beginning. Answering questions related to inconsistent opinions and objective findings that do not correlate or having an opinion during testimony that cannot be substantiated with medical evidence makes for a very long day in the courtroom.
2. Have Credentials - To provide testimony, the legal system must verify that you possess the necessary qualifications and experience. This formal process occurs for potential jurors, witnesses, and content experts. When applied to jurors or potential witnesses, the process is called voir dire. When it is related to the expert, it is called the Daubert standard. The best way a treating doctor or expert can prepare is by receiving additional postgraduate training with a specific focus on diagnostic testing and medical diagnosis. Advanced imaging training, especially MRI, is essential, so you should look at programs that extend past just simple weekend prograimning. Effective prograimning should be 200 hours or more and last up to a year. That additional coursework should be outlined in your curriculum vitae.
3. Work with Medical Specialists -Obtaining medical reports from medical specialists is a critical component of understanding a patient’s condition because injuries often go beyond just chiropractic care. Properly trained chiropractors can help the patient navigate their care path, and the opinions and treatments of other providers are important. Reliance on those opinions is part of complete patient care, so you should have reviewed those to be prepared to coimnent on them. Without them, you can only demonstrate part of the patient’s condition to the jury. Whether you have referred the patient to a specialist is immaterial; be aware that you will be asked to coimnent on the findings of others and how you relied on them during the management of your patient.
4. Provide a Medical Chronology and Narrative Examination - A complete report when the patient has reached maximum improvement helps adjusters, defense lawyers, and plaintiff attorneys understand the patient’s condition, as well as any residual impairments. This type of report contains a complete examination, reevaluation of both regional and segmental range of motion, review of the complete medical record, and all special testing. It is clinically correlated to functional loss statements provided by the patient.
One of the most overlooked aspects of testimony and reporting is the medical chronology. The medical chronology is an organized listing of all the medical treatments and diagnoses related to the patient’s condition in order by date. That includes the police report and emergency department visits. Without truly understanding the entire clinical picture, you will only be commenting on chiropractic care. A true expert can give a strong, fact-based opinion on the entire case; proper reporting and organization from the beginning provide a “playbook” for trial.
5. Survive Cross-Examination - A jury trial is never won on cross-examination, but it can surely be lost. When a treating doctor or expert takes the stand, several processes are set in motion. After taking the oath, you will be questioned by the plaintifF s attorney (patient’s), which will consist of demonstrating your education, credentials, examinations, and the patient’s injuries. That is when you tell the story, so the level of your credibility perceived by the jury depends on your demeanor, credentials, and delivery. Once that portion concludes, the defense attorney will question you. That attorney represents the other party in the injury case (e.g., the other driver in a car accident with two cars) and the insurance company, and they are there to “question your proof.” If you keep that in mind, you will always be okay, especially if you are prepared and have an opinion consistent with the rest of the providers.
Evidence should be objective, science-based, and easily explained. Refrain from medical jargon because health information is best understood when it is presented at a sixth-grade reading level. Your intelligence and grasp of the material will be perceived based on how simply you can explain it. Short answers are always best.
6. Obtain and Review Your Transcripts - Providing trial testimony can be intimidating, to say the least, but the goal is to get better with experience. One of the best ways to ensure positive growth is to obtain your transcripts from depositions or trials because you can review them to leam if your answers were appropriate and easy to understand. Most of the time, you will not remember all the details of your testimony, and often, you only recall what you felt were poor responses. It is easy to “beat yourself up” and think that you could have done a better job. The transcript is the official record; the only way to improve is to objectively review the transcript and outline what you could have done differently.
Providing testimony is an opportunity to contribute to our society, showcase your expertise, and become a better doctor. Strengths and weaknesses in your case management and education will become apparent quickly, but any deficiencies can be easily corrected. I spend considerable time working with doctors to improve in courtrooms and have decades of experience. If you have questions, please contact me. I would be happy to help you.
