From my observation, civil-court defense lawyers are a wily and often devious bunch that take full advantage of the public's prejudice, ignorance, disregard and suspicion of the chiropractic profession and our work.
If a defense lawyer cannot counter your medical testimony, they will often revert to an attempt to assassinate you, the messenger, by questioning your motives and character. You should expect to be attacked to an insulting level. Thus, the first rule in deposition or courtroom testimony is: Don't take such tactics personally. Lose your cool, and they win. With my inherited Irish temperament, what has helped me greatly in this regard is to avoid direct eye contact with such snide and derisive inquisitors. I look away from them in non-video depositions and toward them, but just off to the side, in the courtroom. This helps keep the adrenaline in check and allows me to avoid responding in a hostile way. Let's face it: Emotion stifles intellect, reason and logic, and most of us remain largely emotional animals when we feel personally attacked.
On a physiological level, I never eat immediately prior to deposition or testifying in court. As you know, eating results in a blood rush into the abdomen, depriving the brain of needed go-juice and creating a sluggish effect - not the way to go into battle. Before live testimony, I do try and drink a couple of cups of green tea with honey for its known calming and relaxing effect and the glucose boost. Breathing in through my nostrils, I also try and practice deep abdominal breathing with a relaxed diaphragm during my time in deposition or on the witness stand. This yoga-type breathing mechanically stimulates the large parasympathetic celiac plexus, calming the alarm reaction of adrenalized sympathetics, and providing additional oxygen to brain cells.
Preparation
A thorough and complete review of records and in-depth discussion with your patient's lawyer prior to testimony is indispensable. I naively started out with the opinion that I should remain above such seeming collusion. Bitter experience has taught me differently. A court of law offers only the possibility of justice being served; it does not guarantee it. Thus, communicating the details of the case, educating the lawyer to the precepts and practices of your work, and laying out a blueprint of your coming testimony becomes essential. As a recognized expert in the field of neuromusculoskeletal injury and treatment, you are entitled to have foreknowledge of the questions you will be asked in order to have the time needed for reflection and formulation of the answers you will provide. One cautionary note: You should come to court as a somewhat disinterested reporter of fact and opinion based on medical probability, not as an advocate for your patient. You will lose great credibility with a jury otherwise.
Appearance and Manner
You will also lose standing with a jury if you present yourself to the court in anything other than tailored, conservative, professional clothing, including a jacket and a tie for the men. Avoid wearing jewelry. Make sure your shoes are shined and your hair is neat. First impressions do count in a courtroom; in many ways it mimics a stage and you are the star or the villain. When entering the court, keep your eyes straight ahead and go directly to the witness stand. Since we communicate just as much in nonverbal as verbal ways, a nervous, fidgety manner or a slumped, defensive posture while giving testimony are detrimental to your credibility. On the other hand, language that is too stiff, formal or complicated will choke off the attention and understanding of a jury. You should be relaxed and at ease, and address the jury directly when answering questions. An informal, conversational tone is best, similar to what you use when teaching your friends or patients about your work.
Communicate in Simple Terms
Analogies to help others understand your concepts and terminology go a long way in getting across the big ideas. When it comes to the phenomenon of impaired biomechanical function in the spine, I refer to locked up "gearboxes" in the back of the vertebra. I describe the paraspinal muscles as the "hydraulic pistons" that work the gear box. When I talk about pathological neural-reflex arcs creating chronic guarding myospasm, I talk in terms of "electrical short-circuits locking down the pistons." When I talk about inflamed apophyseal joint structures and edematous capsular ligaments that generate most of the conscious pain that patients experience, I describe "a soft gearbox housing, like a rubber balloon holding in lubricating oil, that is stretched to near bursting." When I talk about conscious pain and the common phenomenon of biomechanical impairment being relieved just enough to abate conscious pain, I describe "a volume-control knob that must reach a certain level before it can be heard by the brain (say 5/10) and how reducing that level to 4 will relieve pain while the condition continues to exist."
This leads to the important discussion of neural-pain threshold and helps a jury understand why rehabilitation treatment is needed well beyond pain-free status. I remind a jury that pain is only a signal and not the condition itself. When I discuss chronic or permanent impairment of biomechanical function due to chronic inflammation, unilateral myospasm, adhesions, scarring and fibrosis, I describe "stripped gears and permanently shortened hydraulic pistons on one side that spark perpetual fires in the back of the spinal column, warping its alignment." In describing the long-term effect of impaired motion on disc integrity, I described "a hardened rubbery Jello spacer and cushion between the spinal bones that slowly dries up and grinds away." I may even go into the 24-hour cycle of disc-fluid loss followed by nightly fluid reabsorption and how reabsorption is impaired when there is little or no movement in the "gearbox." In describing advanced spinal degeneration secondary to chronic biomechanical impairment, I describe "a gearbox with the teeth of the gears no longer aligning themselves properly, which creates friction." In describing bulging discs due to developed weakness in the annular fibers I described "a rubbery cushion bearing a lot of weight that weakens around the edges, allowing it to bulge." And herniated discs are "squirts of the jelly ball inside the rubbery spacer that leak to the outside." In describing chronic, facilitated pain pathways responsible for chronic spinal-pain syndrome, I describe "an electrical current that runs the same path through a maze of wiring connections so long that it gets locked into that route and grows in intensity."
Deposition and Courtroom Cautions
Never be fooled at deposition by a defense attorney's apparent friendliness and ease of manner. He is there to scalp you. Friendly but formal relations are appropriate. Keep your answers as brief as possible in deposition and never volunteer anything. Remember, your words at deposition "can and will be used against you."
In live courtroom testimony, defense lawyers commonly try and wear you down in order to strike their lethal blow in the last few questions of their cross examination. So be as careful, if not more so, at the end of your testimony as you were in the beginning. If you don't understand a question, say so. Don't attempt to answer what you think was said. Remember, you are there simply as a reporter of fact and opinion, your intentions are noble, and your goal is to communicate truth. Don't hesitate to ask for a glass of water if your throat becomes dry. Remain composed. Don't ever hurry your answers and on cross-exam, and don't volunteer information. After being questioned, take a second or two to consider it, formulate an answer, and only then turn to the jury to give your answer. You should control the pace of your time on the stand, slowing down and engaging in forethought gives more gravitas to your answers.
If you find yourself become emotionally charged during cross-examination, concentrate on your breathing, especially the exhales. Remain polite and courteous even while being defamed; think of having an invisible shield about you that protects you from such attack. As an astute observer noted: "Remember, for a punch to make a difference, the punch needs to do something to its target - to rattle, to wound or (best of all) to cause the opponent to counterpunch in a self-defeating way." Let the insolence and slander lie with the defense attorney. Modesty and humility gain the respect of others, while vainglory and pride lose it. Answer questions about your monetary compensation by stating that you are being compensated for the time away from your patients and practice.
Charts and Illustrations
In courtroom testimony, as in most teaching settings, the right picture can be worth more than a thousand words. If the plaintiff lawyer does not have a PowerPoint video projector system, clear transparencies are easy and inexpensive to produce. Have everything in the right order; fumbling and stumbling create awkward gaps in the flow of things. I actually prefer using an overhead projector to PowerPoint. This allows me to get out of the "hot box" for a while and become more familiar with a jury. It also discourages the idea that you and the plaintiff's lawyer are in collusion and "too slick" in your presentation, as if you are conspiring to defraud.
Brevity and Big Ideas
Teach, don't lecture. In all assemblies, rule number one is "never labor the assembly." Nothing is worse than a presenter who drones on and on in monotone, covering inane subjects of such complexity that few understand. Think of teaching a group of curious 10th graders. In today's world of fleeting images and messages flashed in milliseconds across TV screens, attention spans have been shortened. Even the best of jurors will begin to fade after the first 10 minutes of your testimony. That is why it is so important to get your message across early and succinctly in your testimony. I believe it was B.J. Palmer who coined the admonition: "Get the big idea and all else follows." Try and give jurors the big idea in the first five minutes of your testimony, fill in the details and proof of your ideas in the middle, and finish by restating the first minute's testimony. This is effective communication. Above all else, try and keep it simple. You impress no one but yourself in a courtroom using terminology that is not understood.
You may want to save these suggestions for reference prior to your time in deposition or courtroom testimony. They are the product of many buffetings and beatings, hard learned. Remember that truth is on your side, even if at times it does not seem so by jury verdict.
10 Common Defense Allegations You Should Prepare to Counter
- You do not prescribe drugs or perform surgery, therefore you are not a "real doctor."
- Your patient had pre-existing conditions from previous trauma, and you treated them only for the income.
- Your work is quackery because you are largely distrusted by the public, and shunned and isolated by the medical community.
- You have no objective evidence such as MRI or CT to corroborate that a real problem exists.
- Your patient did not come to see you immediately therefore they were not really hurt.
- Low-speed motor vehicle crashes do not produce injury.
- The patient became pain-free and yet you continued to treat them. You are guilty of mercenary motives and overtreatment.
- Your patient is a malingerer and coming to you for only secondary gain.
- The ER X-ray showed only straightening of the neck due to muscle spasm and was otherwise reported as "normal," yet you say there are problems present.
- The patient did not follow through with your recommended course of treatment, so how could they be hurt permanently?
Dr. John Bomar, a 1978 graduate of Palmer College of Chiropractic, practices in Arkadelphia, Ark. He is a past board member of the Arkansas Chiropractic Association and a founding board member of the Arkansas Chiropractic Educational Society. Contact Dr. Bomar with questions and/or comments regarding this article via e-mail:
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