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September, 2011

How to Survive in Court

By Gary J. Rubenstein, DC

Not again! Your CA just handed you another subpoena to appear in court to give live testimony regarding a personal injury case you treated two, maybe three years ago.

You've been to court before and the experience was not pleasant. Mentally, you begin to "sift" through the file that you haven't looked at in months, wondering if all the T's were crossed and I's were dotted. You worry. Who's the defense attorney? How bad will cross-examination be? Will I even be paid? What about my bill?

Most of us have been at these crossroads with respect to Chiropractors in the courtroom. There have been many DC's that have written articles and given seminars regarding testimony. Why listen to me? Because 28 years ago I screwed it up so badly that I was bound and determined NEVER to be embarrassed again on the witness stand. And I haven't. Have I been bloodied? Sure! We will all feel the stick of a tough question. We all feel the insecurity of being alone on a chair of wood being scrutinized by a Jury or in some States, a Judge. How do we minimize the angst?

We must leave the philosophy of the garden hose in the office, and bring our vast knowledge of hard and soft tissue pathophysiology to the courtroom.

Unfriendly Environs

The courtroom has never been a friendly place to the Chiropractor.

We've heard it all too often: that we are voodoo practitioners with little or no training. And how many of us have heard the "death rattle" from a defense attorney ranting about how we don't prescribe medicine! Oh my! And the old one about how we didn't go to Medical School. And more and more and on and on until just walking up the steps of the courthouse was enough to make you run.

No more.

You are still going to hear the same old stuff about our profession from the same old defense attorneys who will try to discredit you. But the good news is that they are running out of bullets, and our ability to present a clear, concise picture of what happened to our patient and the outcome of the injury is getting stronger and stronger thanks to our training and what we have gleaned from research over the years.

Chiropractors are in a perfect position to be the leaders in the courtroom, if you are willing to leave your philosophy in the office.

What Not To Do

Why do I say this? Years ago, before I first testified, a motivational speaker answered a question from an audience member at a seminar. The question involved testimony. The answer from the speaker was as follows: "Give the jury a spinal care class." That sounds sensible and clear, doesn't it?

And so, in my first courtroom appearance I talked about pinched nerves, the garden hose and U even stood up and had the jurors stick their fingers into the IVF's of a spinal model. I was DD and BJ personified! Give me a goatee and walk elephants up Brady Street!

The defense attorney knew that he had a real live wire in me. I was defending chiropractic and selling it as if the jury were prospective patients. Well, maybe they are but the courtroom is not the time and place for practice building.

The defense attorney asked me the usual stuff and he concluded his slicing with this question. "Do you believe then Doctor that every person needs chiropractic care?" Well, I blurted it out without hesitation. Yes! Yes! On the souls of BJ and DD Yes!!

He laughed. I died. I realized what he had done.

For over an hour, this defense attorney made me sweat. Although the last question he asked was the coupe de gras, my problems began from the first moment after I was sworn in. I was a complete alien amongst members of a profession that knew the room, the language and the ins and outs of the procedure. I was a first time witness, something that most good defense attorneys have no problem ascertaining. The first question from this attorney set in to motion the remainder of my testimony under cross examination which only further fueled my anxiety. He asked me, "Dr., where did you go to college?" I answered, and I kid you not, "I attended a Bachelors College." I will never forget that answer. I meant to say Drake University and received a Bachelors degree, but nerves prevented my tongue from revealing its confidence!

As the cross examination wore on, he was never condescending....he didn't need to be. I was my own worst enemy. I just kept defending myself with a little chip on my shoulder and an "I'll show him" attitude. In the end, as I've said, he showed me the door with my tail between my legs. I was thoroughly "schooled" by this attorney and totally embarrassed.

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