Expert Witness: When a chiropractor is called to court

PART 1 – WHAT BEING AN EXPERT WITNESS IS ALL ABOUT
As our society becomes more litigious, civil court cases – now more frequent and complicated, with more at stake – need expert witnesses to assist the law courts in making sound decisions. Also, the issuing of proper awards is a growing requirement. In the United States, being an expert witness is almost a profession in itself.

PART 1 – WHAT BEING AN EXPERT WITNESS IS ALL ABOUT
As our society becomes more litigious, civil court cases – now more frequent and complicated, with more at stake – need expert witnesses to assist the law courts in making sound decisions. Also, the issuing of proper awards is a growing requirement. In the United States, being an expert witness is almost a profession in itself.  However, in Canada, as most chiropractors have little or no actual experience, testifying in court can be a disquieting adventure. Knowledge of exactly how it all works, the legal system and the rules of court, is unchartered territory for the chiropractic profession, and many others. It is not a television production – Law and Order, Matlock, or the like – but it is still a well-rehearsed stage play where all the characters – lawyers, judges, court reporters, and watchdogs – do their part, recite their lines, thrust and parry and play but their roles in an adversarial system, until one side wins.

Black’s Law Dictionary defines an “expert witness as one who, by reason of education or specialized experience, possesses superior knowledge with respect to a subject about which persons having no particular training are incapable of forming an accurate opinion or deducing correct conclusions. A witness who has been qualified as an expert, and who, thereby, will be allowed  – through his/her answers – to those questions posted to him/her, can assist the jury in understanding complicated and technical subjects not within the understanding of the average lay person… One possessing, with reference to a particular subject, knowledge not acquired by ordinary persons.”  (Author’s note: In most civil trials in Canada, different than in the U.S., there is no jury, only a judge who is presumed to adjudicate fairly.)

Role, requirements and ramifications
As an expert witness for trials, hearings, or appearance before tribunals of various types, chiropractors may be called upon to recite facts and give testimony in chiropractic malpractice cases, negligence and tort cases, for auto and other accidents, insurance settlements, personal or work-related injuries, settlement of grievances, board regulatory hearings, or arbitrations. Also, they could be called upon to provide forensic evidence in criminal proceedings. The first step is to fully understand the role he/she is to play and to understand the ramifications of participating as an expert witness. 

 At times there could be a problem of conscience. Even the very best of Doctors of Chiropractic, who exercise the highest standards, could be named in a malpractice suit. Other Doctors of Chiropractic may consider it unconscionable to testify about the shortcomings of a fellow of the profession. Still, if chiropractors are unwilling to testify in these actions, the profession will be left with having its standards investigated and questioned by others such as medical doctors, an unacceptable solution. 

To be recognized by the courts as such, chiropractic expert witnesses must have relevant credentials and extensive professional experience. He/she must provide affirmation proving professional development beyond the basic education and training required for regular day-to-day practice, and be acknowledged by his/her peers as an expert. This is not the case with fact witnesses, individuals who personally witnessed or participated in the cause at trial, and who testify about what they saw, or heard, based on first-hand knowledge. 

In this context, as a Doctor of Chiropractic, you will be expected to evaluate the facts of the case, determine the nature and extent of the injury and render an opinion based thereon. Required, is the ability to orally educate on what are complicated chiropractic procedures in a way that is understandable to the judge. For this you must be credible, compelling, and have the ability to respond, without prejudice, when your opinions and conclusions are challenged. The starting point is having impeccable credentials.

The litigation process – What you should know
The litigation process is a legal procedure, not a medical workup. The chiropractic/medical mind emphasizes independent judgment, rational analysis, and scientific evidence to establish the truth. The legal mind focuses on the ramifications of what is in dispute, either legally or factually. In most cases, particularly malpractice, there is no correct answer or established truth, only disputed facts and differing legal interpretations. Expert witnesses deliver objectivity, lawyers are rewarded for subjectivity.  Experts present the facts, lawyers reflect, and the judge interprets the law, weighs the evidence, and determines what is proper.

Borrowing from the canons of The American College of Foot and Ankle Surgeons, chiropractors, as expert witnesses, must recognize their responsibility to provide testimony that is truthful, impartial, scientifically correct and in accordance with the merits of the case.
 
The Expert Witness Report
The role of the expert witness normally commences when he/she receives, from the lawyer for whom he/she will act, all preliminary data pertaining to the case at hand. From this, he/she examines and analyses all facts, including extenuating circumstances, which will be presented at trial,  and contemplating the questions to be asked by counsel for both sides, prepares a written report stating his/her opinions on the merits of the action. The report is to follow a logical format and be understandable to a lay person. Where medical terms are used it is necessary to clearly define those terms.

As your report is open for examination by the opposing lawyer, and will probably be entered as evidence, it is important to not put, therein, or take with you to court, anything you would not wish revealed to opposing counsel.

Your report should detail three specific areas:

• a list of the factual documents reviewed,

• interpretation, evaluation, and opinions, and

• the basis for those opinions.

The cardinal rule is not to be an advocate but a neutral participant, unconcerned with the outcome.  Your fees are paid whether your side wins or loses.  However, let’s be honest about it: the concept of the impartial expert is only a theory. It is impossible not to get caught up in the adversarial system. Expert witnesses, including chiropractors, are always tempted to skew the facts to favour the party who hired them. Selection of the appropriate witness, the witness’s preparation, and how answers to the questions are framed, are crucial to a lawyer’s case. As the drama unfolds it becomes an effort to stay neutral and unbiased. However, those who can fine-tune their testimonies to aid the lawyer’s cases will be hired by the same law firm again and again.

Still, you must avoid being a hired gun. If you develop this reputation no one will take a chance on you.

In Part 2 we will discuss procedures that you will need to know, as an expert witness, once you arrive at court.

Lloyd Manning is a semi-retired business appraiser and financial analyst who is now a freelance business article writer. He resides in Lloydminster, Sask He can be reached at lloydmann@shaw.ca .