Gary J. Rubenstein, DC
Not again! Your CA just handed you another subpoena to appear in court to give live testimony regarding a personal injury case you treated two, maybe three years ago.
You've been to court before and the experience was not pleasant. Mentally, you begin to "sift" through the file that you haven't looked at in months, wondering if all the T's were crossed and I's were dotted. You worry. Who's the defense attorney? How bad will cross-examination be? Will I even be paid? What about my bill?
Most of us have been at these crossroads with respect to Chiropractors in the courtroom. There have been many DC's that have written articles and given seminars regarding testimony. Why listen to me? Because 28 years ago I screwed it up so badly that I was bound and determined NEVER to be embarrassed again on the witness stand. And I haven't. Have I been bloodied? Sure! We will all feel the stick of a tough question. We all feel the insecurity of being alone on a chair of wood being scrutinized by a Jury or in some States, a Judge. How do we minimize the angst?
We must leave the philosophy of the garden hose in the office, and bring our vast knowledge of hard and soft tissue pathophysiology to the courtroom.
Unfriendly Environs
The courtroom has never been a friendly place to the Chiropractor.
We've heard it all too often: that we are voodoo practitioners with little or no training. And how many of us have heard the "death rattle" from a defense attorney ranting about how we don't prescribe medicine! Oh my! And the old one about how we didn't go to Medical School. And more and more and on and on until just walking up the steps of the courthouse was enough to make you run.
No more.
You are still going to hear the same old stuff about our profession from the same old defense attorneys who will try to discredit you. But the good news is that they are running out of bullets, and our ability to present a clear, concise picture of what happened to our patient and the outcome of the injury is getting stronger and stronger thanks to our training and what we have gleaned from research over the years.
Chiropractors are in a perfect position to be the leaders in the courtroom, if you are willing to leave your philosophy in the office.
What Not To Do
Why do I say this? Years ago, before I first testified, a motivational speaker answered a question from an audience member at a seminar. The question involved testimony. The answer from the speaker was as follows: "Give the jury a spinal care class." That sounds sensible and clear, doesn't it?
And so, in my first courtroom appearance I talked about pinched nerves, the garden hose and U even stood up and had the jurors stick their fingers into the IVF's of a spinal model.I was DD and BJ personified! Give me a goatee and walk elephants up Brady Street!
The defense attorney knew that he had a real live wire in me. I was defending chiropractic and selling it as if the jury were prospective patients. Well, maybe they are but the courtroom is not the time and place for practice building.
The defense attorney asked me the usual stuff and he concluded his slicing with this question. "Do you believe then Doctor that every person needs chiropractic care?" Well, I blurted it out without hesitation. Yes! Yes! On the souls of BJ and DD Yes!!
He laughed. I died. I realized what he had done.
For over an hour, this defense attorney made me sweat. Although the last question he asked was the coupe de gras, my problems began from the first moment after I was sworn in. I was a complete alien amongst members of a profession that knew the room, the language and the ins and outs of the procedure. I was a first time witness, something that most good defense attorneys have no problem ascertaining. The first question from this attorney set in to motion the remainder of my testimony under cross examination which only further fueled my anxiety. He asked me, "Dr., where did you go to college?" I answered, and I kid you not, "I attended a Bachelors College." I will never forget that answer. I meant to say Drake University and received a Bachelors degree, but nerves prevented my tongue from revealing its confidence!
As the cross examination wore on, he was never condescending....he didn't need to be. I was my own worst enemy. I just kept defending myself with a little chip on my shoulder and an "I'll show him" attitude. In the end, as I've said, he showed me the door with my tail between my legs. I was thoroughly "schooled" by this attorney and totally embarrassed.
[pb]Matter of fact, after I was dismissed, I ran across him in the men's room of all places, where he congratulated me on my first time in court and told me how much better I'd be the next time around. You bet I would be!
He baited the hook and I bit. Never again. Please keep this perspective. Your office is the place for spinal care classes, the garden hose and any other philosophy you choose. Not the courtroom.
If The Glove Fits
So what's different now? First, I will not testify unless I have had the opportunity to speak with the plaintiff's attorney prior to Court. Why is this important? A good attorney will have your narrative report. They will review that with you prior to your testimony and create a template from which to ask you questions in an organized fashion, covering the entire case from history to prognosis.In that fashion, you will know what's coming. And your attorney will know the answers. There's an old saw in the legal profession: Never ask a question unless you already know the answer.
An attorney that will not discuss your testimony prior to court is one that will look at you on the stand and say, "Dr. tell us about this accident." You cannot be an effective witness when you ramble. You must have concise answers to specific questions and they must be asked logically and in a chronologic order. A good attorney will know how to handle this.
Look the Part, Watch Your Tongue
Courtroom appearance is important. Some of us just have this burning desire to wear scrubs. That's ok. In the office! Not the courtroom. And please, don't be dressed like a dentist I saw testify a couple months ago. He had on slacks and a monogrammed golf shirt. Bad karma for the jury. They could tell he was totally disinterested in the matter at hand. A suit will do. Not one with thick stripes. Not a purple one. A conservative suit. You will be judged from the moment you are called to the stand to the moment you are dismissed. Look the part doctors. You're an expert!
Perhaps the most salient point I can bring out is how you testify. You need to testify like the best orthopedist around. Yes, I said it. You have the knowledge. Leave certain words out of your testimony. Like "adjustment." Leave it out of the courtroom. I know: I said leave the word adjustment out of the courtroom. Mobilization is "neater and cleaner." The defense would love nothing more than have you say adjustment or spinal manipulation or Chiropractic manipulation.
The word mobilization is used by Orthopedic Surgeons and Physical Therapists throughout the country with respect to treating certain types of musculoskeletal conditions. Defense attorneys salivate at the thought of cornering Chiropractors in cross examination with our adjustment mentality. It gives them a clear opportunity to move into the arena of forceful, harsh, "cracking" of the spine, something they can't do with mobilization.
The defense attorney will try anything to win, including blaming your vicious, heavy-handed adjustments if need be. "Mobilization" takes this possibility away from the defense. As well, when answering questions on both direct and cross examination, the shorter the answer, the safer you are. We've all given a long drawn out explanation in court and all you have to do is watch the defense attorney scribbling on his/her legal pad, as you give them more ammunition for cross-examination. Explain when the plaintiffs attorney asks. Don't ramble during cross.
Know the definition of sprain/strain like it was part of your daily mantra. Be able to demonstrate to the Court what happens in a sprain/strain injury. And stay away from the word whiplash!Everyone knows stories about people faking "whiplash." It's a loaded word with a lot of negative. Instead, talk about spinal contours and how they are affected by injury. You have the knowledge, the training and the skill to testify like the expert you are.But above all, tell the truth. If you don't know, you don't know.
Remember this little example. Someone asks you, "do you have the time?" You answer, "yes, it's 2 o'clock." Wrong answer. You're answer should have been yes, I have the time. The next question would have been, "what time is it."
Answer only what you're asked in the courtroom.
Testimony in the courtroom is a topic with many parts. But first and foremost remember: the courtroom is the home field for attorneys. It's not your home field.However, you can, with few words and properly placed answers make the defense feel like they've lost home field advantage. Don't be rattled.
As you consistently testify in local courts, your reputation will precede your appearance and you will find that cross examination isn't the horror it once was.There are many ways to prepare. Hopefully in the future we can discuss great answers to typical cross examination questions.
