5. Trial Testimony of the Health Care Witness

A) Pre-trial Conference with Attorney:

1. Preceded by receipt of copy of the deposition transcript of the witness [and of any opposing doctor] and all pertinent records and reports for review in advance of conference
2. Review materials to see witness has items needed
3. Review witness' deposition know it
4. Review curriculum vitae to skip irrelevant and avoid potentially harmful elements, anticipate and defuse weak areas
5. Discuss form of questions to best elicit direct testimony; help formulate the questions that are clear to you to enable the plaintiff's attorney to extract ALL the pertinent information from you
6. Unlike a non-treating doctor, a treating doctor may reasonably rely upon the opinions of other doctors consulted by the plaintiff
7. If witness has relied upon scientific principles in books or other writings [hearsay], [s]he should be able to state that the principles are frequently used and respected by other doctors in the field, having gained wide acceptance
8. The medical opinions of the witness should be based upon facts reasonably relied upon by other doctors in the same field
9. Choreograph the use of demonstrative evidence [charts, x-rays, blowups, medical drawings, models] which will enhance the presentation of direct examination
10. Discuss cross-examination
1. Avoid anger, argument, sarcasm, and being "cute"
2. Stay within qualifications
3. Expect questions regarding:
• Fee to testify
• Lien for unpaid bill
• Percentage of practice related to legal work [professional witness]
• Frequency of testifying more for plaintiffs than defendants [or vice versa]
• Inconsistencies within or amongst records, deposition, prior depositions/ trial testimony, and writings of witness
• Inadequate testing [objective vs. subjective]
• Inconsistencies between the position of the witness and the position of [an] authority[ies] who the cross-examining attorney has gotten the witness to acknowledge as an authority
• The witness, reliance upon information from others [e.g., the patient] which, if incorrect, undermines the medical opinion of the witness
• Inquiry into the adequacy of training, experience, research and conduct of relevant tests
4. Look for "how" and "why" questions as openings to express your points.
1. Most questions will be leading to control the responses of the witness, especially one who is strong and/or verbose.
2. Listen carefully to hypothetical questions with changed facts posed to obtain the expression of a desired opinion [i.e., attack on underlying assumptions].
5. It is improper to cross-examine with professional text or journal unless the witness has referred to, considered or relied upon it in forming an opinion in the case.
6. Witness can only be cross-examined with tests considered or relied on by him/her; NOT with tests unfamiliar to the witness or a contrary opinion not relied upon by the witness.
7. Take time to study any chart, diagram, x-ray or photo presented; do not precipitously respond to questions regarding them.
8. Goals of opposing attorney during the cross-examination are:
1. To discredit the witness personally via qualifications, bias, or personal interest
2. To discredit the factual basis for direct testimony
3. To discredit conclusions and opinions stated on direct
4. To elicit admissions and facts beneficial to the defense
9. Opposing attorney can voir dire an expert witness before direct examination regarding education, experience, memberships and publications
10. Examine all documents presented before testifying about them
11. Be able to defend the bases of medical opinions [anticipate that opposing attorney will have reviewed any treatises relied upon in quest for a contradiction or inconsistency]
11. Have the attorney familiarize you with the geography of the courtroom, courtroom procedure, and the judge's proclivities in advance, visit a courtroom and sit in a witness chair
12. Formulate opinions[s] regarding the mechanism of injury and the cause of residual symptoms, findings and disabilities, with the following in mind:
1. Burden of proof = reasonable medical certainty, not scientific certainty
2. The importance of establishing a clear diagnosis for each injury and basis for each diagnosis
3. Plaintiff can recover for aggravation of a preexisting condition; (BAJI 14.65]
4. Plaintiff can recover for disease or subsequent injury caused by lowered vitality or from an impaired condition resulting from the original injury; and (BAJI 14.66]
5. But plaintiff also has the duty to mitigate damages, i.e. must act reasonably to recover (BAJI 14.67]
13. Discuss scheduling.

B) At trial, wear: Suit, white shirt, and tie or dark dress, modest and small amount of jewelry, and a new haircut, do not talk so as to be overheard by jurors during breaks.

C) Five Rules to Remember When Questioned:

1. Listen to the question: ask for it to be repeated
2. Understand the question: ask for it to be rephrased or explained
3. Think about the question: take time to give an accurate honest answer and to allow the attorney to object to the question if deemed necessary
4. Answer only the question: do not volunteer comments or information
5. Answer truthfully and honestly: if you do not know or do not remember, say so

D) General Considerations to Effectively Handle Cross-Examination:

1. Do not get angry, sarcastic, argumentative, cute or rude.
2. Do not appear evasive or equivocal; keep answers short - yes or no if possible unless given a clear opening to make point.
3. Expect that you will have to concede points.
4. Expect questions aimed at impeachment:
1. Interest in having your fees/lien paid
2. Length and nature of acquaintanceship with the patient
3. Percentage of your work that is legal cases
4. Frequency of testifying for plaintiffs
5. Anticipate possibly being confronted with prior inconsistent statements in this case or other cases in reports, depositions, writings, speeches and other trials.
6. You can only be cross-examined with a scientific or professional text which you considered in forming an opinion or which has been admitted into evidence in the case [rare].
7. Watch for the summarizing testimony question, which often contains subtle changes: if inaccurate, simply say so without saying more; if it appears accurate, say that it appears generally accurate, but that your earlier testimony is more accurate.
8. Watch for questions which ask you to assume facts you have not verified; unless in the form of a hypothetical question, it is improper.
9. Watch for questions using the words never, always and those calling for speculation, such as isn't it possible?
10. Do not feel compelled to provide precise recall; give your best recollection.

E) Outline of Presentation of Trial Testimony:

1. Introduction: name, address, profession [explain].
2. Qualifications:
1. Education where, when, number of years to get degree, degree obtained, honors, prizes.
2. When licensed and where.
3. Time, nature, length, purpose and specialty of internship or post-graduate work.
4. Nature of your practice and what it is [e.g., what chiropractic is].
5. Hospitals affiliated with, what was required to become affiliated.
6. Teaching experience.
7. Membership in professional societies.
8. Certification specialty, what was required to attain and what percentage of doctors in this specialty receive this certification.
9. Publications.
10. Substantial, experience in treatment of particular injury involved [quantify].
3. Initial visit:
1. How the patient came to you [e.g., referral]
2. History taken [stress how important it is]
• Detail how injury occurred and immediate after effects, symptomatology
• Detail onset and progress of symptoms, including pain, discomfort and limited mobility
3. Symptoms observed and described
4. Physical exam and tests conducted [use demonstrative evidence here]; state:
• Their purpose
• Description of each
• Observations and findings
• Significance of clinical tests AND special diagnostic tests [x-rays, etc]
5. Diagnosis
6. Medical causation opinions regarding:
• The mechanism of injury
• The cause of residual symptoms, findings and disabilities
• Aggravation of any pre-existing condition [for which a plaintiff may recover damages]
• The relationship between injury and subsequent injuries or conditions [plaintiff can recover damages for disease or subsequent injury, caused by lowered vitality or impaired condition].
7. Prognosis at that time
8. Course of treatment prescribed
• Describe how the injury heals
• State the time required to recover
• Describe the damage to the tissue
• State the limitations due to the injury and due to the treatment
• Describe pertinent procedures

4. Subsequent visits:
1. Complaints
2. Examination findings
3. Medical causes of complaints and findings
4. Effect of complaints upon the activities of the plaintiff
5. Treatment administered
6. Medical cause of the findings
5. Present Condition: cover same points as in number 4 above AND
1. Present diagnosis [nature and extent of injuries]
2. Prognosis:
• Whether the injuries are permanent
• Whether they have made him/her more susceptible to future conditions or injuries [e.g., arthritis]
• Any future treatment required
• Limitations: occupational, recreational, everyday tasks, motion
• Degree, frequency and duration of pain
6. Medical billings [to date and those reasonably anticipated per prognosis]

F) The jury is apt to accept the medical opinions of the doctor who has the superior qualifications, unless the basis of opinion lacks sufficient plausibility. if qualifications are reasonably equal and the jury receives conflicting medical opinions, it is apt to accept the one with the most plausible basis.