Expert Witness: When a chiropractor is called to court, part 2

PART 2 – WHEN YOU GET TO COURT
The first step, in your appearance as an expert witness, whether for
plaintiff or respondent, is the pre-trial interview. This is where the
lawyer who hired you reviews with you your report, the case, and the
questions you will be asked.

PART 2 – WHEN YOU GET TO COURT
The first step, in your appearance as an expert witness, whether for plaintiff or respondent, is the pre-trial interview. This is where the lawyer who hired you reviews with you your report, the case, and the questions you will be asked. He/she will want to know: the extent of your expertise, and the degree of confidence you have in your opinions and conclusions, whether those opinions are firmly held, and if you made any legally unsupportable suppositions. You cannot change your mind under cross examination. You need to become familiar with the opposition’s case, and the key facts they will present, understand the issues that could arise, and where the strong and weak points in your case, and that of the opposition, lie. Guide your lawyer though the minefields that could be encountered so all questions that could be asked by either counsel can be answered factually, calmly, and logically. Coach your lawyer as to what questions to ask.

INITIAL CHALLENGES
When you get into court, subject to you being challenged by opposing counsel, your lawyer will first qualify you as an expert witness.  For this purpose, he/she will conduct a detailed interrogation during which you will be questioned at length about your education, training, specific experience, and any similar involvements in your background that will exemplify any notable expertise you may have relative to the matter at hand. Opposing counsel will attempt to minimize your strong points and focus on your shortcomings. The intent is to cast doubt in the mind of the judge as to your expertise and credibility. A given is that, as a doctor of chiropractic, you are sufficiently mature to withstand the scrutiny of experts within your field. When opposing counsel introduces his/her expert, the shoe is on the other foot, and that expert is subject to the same challenge as were you. In some cases only one expert is called, he/she acting for both parties.

HOW WELL DO YOU KNOW THE CASE?
After being accepted, as an expert witness you’ll be questioned at length regarding your knowledge of the facts of the case, asked for your opinions, and the basis for those opinions.  Clarifying what you know and don’t know, and that the theory and techniques you expound are generally accepted within the chiropractic community, is crucial to the litigation game. The purpose is to ensure that all expert testimony is reliable and can be substantiated. On cross-examination, your depth of research and your opinions will be challenged – is this guy much more knowledgeable and credible – and you will be attacked on the basis for those opinions. Attacks by opposing counsel could be vicious, yet are never personal. It’s an adversarial system. Prosecuting, defending, and judging are just part of the job. If you have done your homework, are competent, capable, and have rendered a supportable prognosis, there is nothing to attack you with. For lawyers, it always comes down to putting on the best show and convincing the judge that he/she should believe his/her expert rather than the other guy’s. 

REMUNERATION FOR THE EXPERT WITNESS
The unwritten rule is that the prime responsibility of a chiropractic expert witness is to the court, rather than to the party who instructs him/her. But, this is not to suggest that you become an amicus curiae – a friend of the court – for an amicus curiae does not get paid, which is not your intention.

MAKE SURE YOU DO GET PAID
According to the Expert Witness Article Library, medical doctors charge the highest rates, with most around $370 per hour, 25 per cent charging $500 per hour, and two per cent, $600 per hour. Rates increase with experience, expertise and the complexity of the case. There is always a minimum. With some it is $500, but with others $1,000. In all cases, fees are payable regardless of the outcome of the trial. And, never accept an assignment where your fees are on a contingency basis. 

Statistics indicate that 96 per cent of litigation cases are settled without trial. With the assistance of experts, lawyers, and insurers, claimants assess the merits of their case at the examinations-for-discovery stage, then speculate what would happen in court. Accordingly, often a settlement is reached without a trial.

FINAL REMINDERS
Before accepting employment as an expert witness, always ensure there is no conflict of interest. Penalties for not declaring a conflict are disqualification as an expert witness and perhaps other punitive actions. Never go to court unprepared. Avoid the lawyer who phones at nine in the morning, and says “I want you in court in an hour,” and you know nothing about the situation. (It has happened to me.) Become an indispensable consultant. Win the battle of experts, but on a fair and non-personal basis. Show respect for opposing counsel, and his/her expert(s). Learn and understand the system and how the court works, the laws of evidence, the canons of ethics, what to say and what to avoid. Remember the rules of competency, credibility and confidentiality. Going to court can be fun, and financially rewarding. Still, if you go in with a “beat the hell out of them at any cost” attitude, or are unprepared – or are perhaps a little thin-skinned – it can be a most frightening experience.

Lloyd R. 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 .