The key to how DCs can survive cross-examination in the courtroom

Have you ever wondered why your attorney is pleasant; while under cross-examination, the opposing attorney seems to be on your side but is really trying to discredit you? If an attorney cannot disqualify you as an expert, he or she will attack your credibility. Do not open yourself up to vigorous cross-examination by the opposing counsel. All experts or treating doctors (aka, fact witnesses) need to be qualified to testify in court.

The Federal Daubert Rule and Frye Standards
The use of the Daubert or Frye tests allow attorneys the chance to disqualify your report and testimony. If the challenge is successful, you may not be allowed to testify. If you are testifying in court, be prepared to have your report reviewed to see if it meets the qualifications under Federal Rule 26.

The opposing attorney will do his homework in preparation for trial, and you should do the same. Proper preparation is an essential requirement to excel under cross-examination. One step in proper preparation includes meeting with your attorney prior to trial.

The opposing attorney will carefully review your résumé, education, and experience. He or she will also look at any prior testimony you gave in the courts, search the Internet about you, review any Web sites you have, and find any weaknesses so he can attack your character during cross-examination. Remember, the opposing attorney is going to try to elicit admissions, concessions, and facts from you to support his or her case. He or she will try to place questionable doubt in the jury’s mind concerning your credibility. In a trial, the jury decides whether to believe your testimony. They usually base their decisions on their ability to relate your testimony to their own experiences. If you make sense and are consistent in your testimony, the jury will tend to believe you. When testifying, always direct your answers to the jury and always tell the truth. Proper preparation on your part will minimize the ammunition the opposing attorney has to use against you. Here are some simple guidelines:

1. prepare, prepare, and prepare;
2. do not be arrogant—be confident;
3. do not be evasive;
4. dress properly;
5. do not be afraid to say, “I don’t know,” and ask the opposing attorney to clarify any question;
6. do not argue with the opposing attorney;
7. pause and think before you answer questions from any attorney;
8. Speak simply and directly, and remember that juries are lay people; most do not understand technical medical terms;
9. do not get distracted, and remain on the theme of the case;
10. prior to your testimony, get a read on the opposing attorney, the jury, and the judge;
11. anticipate difficult questions, and be prepared to answer them;
12. carefully organize and review your case file;
13. if you were deposed, reread your deposition; the opposing attorney will use it to discredit you;
14. do not bring anything to the stand with you, as it may be used against you;
15. always finish your answer to the question, even if you are interrupted;
16. admit your mistakes;
17. point out any incorrect facts used by the opposing attorney;
18. give an explanation first, then the answer;
19. keep cool, and try not to freeze; and
20. stand by your expertise and your opinion, but be able to defend it.

You should consider the likely areas of cross-examination that you might face. Your attorney can help you with that. Potential trouble area may be:

1. your relationship with insurance companies in the evaluation of other cases;
2. any ongoing relationship with your attorney;
3. if your testimony is considered a “hired gun”;
4. how much you are paid for your testimony;
5. if you actively practice in your profession;
6. if you have any affiliations with biased organizations;
7. any out-of-court statements you make concerning the case;
8. any false or misleading information on your résumé;
9. any overstated information on your résumé that may lead the reader to believe you are an expert in many areas, when in fact you are not;
10. the types of organizations of which you are a member;
11. any information in your résumé that may not be factual;
12. Terms like “internationally or nationally known,” as these are self-serving characterizations of your qualifications;
13. missing dates of employment;
14. any missing certifications on your résumé; and
15. lack of formal education or degrees.

One of the most critical areas on which you will be cross-examined is your opinion, how you arrived at your opinion, and your conclusion. This is where most doctors fail in their testimony. Your opinion should be based on a methodology that will ensure a Daubert challenge. Is your theory tested? Is it generally accepted in the relevant scientific community? And has your opinion and conclusion been subject to peer review or publication? Finally, what is the known potential error rate in your methodology that you used to reach your opinion and conclusion? What factual assumptions have you made in reaching your opinion? Does your opinion conflict with other experts or publications? What references did you use in reaching your opinion and conclusion? Did you consider all information in reaching your opinion? Most records that I have reviewed do not include the records of other doctors or facilities. Make sure you get all the records of past treatment(s) of the patient. How much time did you spend on the case? What degree of certainty did you maintain when expressing your assumptions?

These are all questions that you may be required to answer. In addition, there may be a direct assault on your credibility. Be prepared to answer tough questions in this area. Remember, attorneys are given a wide latitude in cross-examination of your testimony. Any questions asked during cross-examination are at the discretion of the judge. Usually, the scope of cross-examination will only be overturned on appeal for abuse by the judge.

Answer all questions, but watch out for the trick questions. These are questions with unestablished facts that assume a false premise and unreasonable limitations, and are outside your expertise. Be prepared for these types of questions. Remember, the opposing attorney will do a detailed investigation on you, and he or she will use the information obtained to find and exploit your weakness during cross-examination.

In your case, again, proper preparation is essential. Almost all your ability to excel in cross-examination is through preparation. Treat your preparation as your final examination—as you did to obtain your license to practice chiropractic. Your proper preparation will present with the opposing attorney and the jury. Testify with confidence, based on facts relevant to the case. Jurors hear facts from both sides, then they have to make a decision based on these facts. If you testify, you must know and understand what the jury wants. The following is essential for you to portray to the jury:

1. use relevant and believable testimony;
2. remain interested in the case;
3. use simple terms that the jury can understand, and do not try to show them how smart you are;
4. explain the case in a story format;
5. use visual aids, and do not be afraid to put on a dog and pony show. You are allowed to get up and use the aids;
6. teach the jury, but do not lecture them;
7. show confidence, and explain your evidence so that the jury understands it;
8. maintain eye contact with the jury, not the opposing attorney;
9. use analogies;
10. stay with the theme of the case; and
11. tell the jury a believable story.

Preparation and prevention are essential elements in cross-examination. How you prepare will have a direct effect on your testimony and the outcome of the case. Take preventative action on potential problem areas before you take the stand. These include: your credibility; your qualifications, opinions, and conclusions, and your basis for these; your résumé; any biases; prior testimony, writings, and statements; and where you obtained your authority for any conclusions and opinions you made in your report. These are critical areas on which you can expect vigorous cross-examination. Be prepared!!

Develop and use your own style in dealing with cross-examination. Listening to every word in the questions that the opposing attorney will ask you is key. Investigate the facts in the case as completely as you can. Be prepared to defend your investigation of the facts and the accuracy of the information in the case. In addition, make sure you get and review all relevant records in the case to determine all the facts prior to your testimony. Do not use the term, “degree of medical certainty.” The reasoning behind this is: To what degree are you certain? The opposing attorney will ask you this question. If you assign a number like 80%, then that usually implies that there is a 20% chance you are wrong. Use the following instead: “Based on my education, training, experience, review of records, and analysis, it is my opinion that Ms Jones has suffered a permanent injury.” Do not play the numbers game with the opposing attorney; it will be a losing proposition for you, which is a big trap for testifying doctors. Learn to recognize cross-examination tactics; understand them and how they work. A truly dangerous expert witness is one who is very resistant to cross-examination and turns the tables on the opposing attorney. Keep in mind that your résumé needs to be accurate, so do not include information that is not factual. Be able to defend your opinions and conclusions, as well as the references you used to reach those opinions and conclusions. Jurors evaluate your testimony as a result of your cross-examination. This can be in a trial setting or in a deposition prior to trial that will be used in trial. As I mentioned earlier, jurors are lay persons; for the most part, they do not have the expertise to evaluate information outside their knowledge. What they rely on is factual, common-sense information that is complete and consistent with the testifying person. Make a good first impression with the opposing attorney and the jury. Maintain eye contact with the jury; and speak clearly, simply, and directly. Keep to the theme of the case, and always show a proper demeanor in court or in depositions. CP

Kenneth Ross, DC, JD, MBA, LHRM, is a retired criminal law enforcement officer and practices chiropractic in Orlando, Fla. He is a faculty member of Texas Chiropractic College and conducts a national expert witness certification course. He can be reached at (866) 225-5055, or via the Web site: www.medtechusa.net.