Facts are subjective or objective. “Both things and events are objective facts. They exist in the public domain and are in principle accessible to all.”  D. Q. McInerny, Being Logical (Random House paperback 2005) at 5. But there is a difference between a subjective fact and an objective fact. A headache is an example of a subjective fact. Id. at 6. The headache sufferer has direct evidence of the headache. Id. When it is another person who is hearing about the headache it can only be indirectly established. “Establishing the reality of subjective facts depends entirely on the trustworthiness of those who claim to be experiencing them.” Id. When the fact is an existing thing to which the listener has access to view it becomes objective and we need not “trust” the speaker.

What about a fact demonstrated through show and tell. When we show and tell we eliminate communication problems that occur when our spoken word is not interpreted in the way we mean to convey. When we show and tell the listener sees our subjective fact closer to an objective fact. This is because our listener is given visual cues about the fact.

When we have our witness at trial show and tell what has occurred rather than tell what has occurred the facts rise to a higher level. This is because the jury is able to experience the facts rather than just hear the facts. The facts come to life through the witness as she speaks in the present tense and recreates the event by showing and telling what occurred. 

This may be done the traditional way from the witness stand. If movement is helpful the witness may be allowed to go into the well of the courtroom. There witness explains the scene to the jury. She may use props such as council table, chair or books to set the scene. She then relives the scene in a show and tell fashion.  As the saying goes seeing is believing and the jury is allowed to see through witness show and tell.

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In a personal injury case one of the most important witnesses is the treating doctor. Here is my guide for direct examination of the treating doctor.

Meet the treating doctor before the direct examination. This needs to be done before the defense deposition. Cover client’s significant medical records including records that predate injuries at issue. Discuss any similar injury so the doctor is prepared to address it in the deposition and later during direct and cross examination. Discus the injury at issue.

As with all direct examination of a witness tell him what will be covered so he has a road map. Preparation is important but not at the expense of spontaneity. The direct examination is conversational rather than rehearsed. If it is being recorded remind  doctor the camera is the jury.

In direct when in doubt stick to the six good friends: who, what, when, where, why & how questions. Rarely will you go wrong with this formula on direct. Make sure doctor is testifying on a more probable than not basis on opinions concerning nature and extent of injuries as well as conditions caused by event at issue.

Begin by asking the doctor why he is here today. The first minutes of the direct examination are the most important. Have doctor tell the jury he is plaintiff’s treating physician. He has been asked to testify on the injuries his patient  sustained in the traumatic event, the course of treatment and how plaintiff is doing today. 

Discuss Doctor’s background: Medical education, Association memberships, Board certification (include Teaching positions if applicable).

Discuss treatment of traumatically injured patients with similar injuries to plaintiff. Include questions about other areas of his medical practice. If doctor’s practice lacks a forensic component elicit this testimony. If there is a forensic component  discuss the nature of this practice, and how it differs from a treating practice.

On treatment of client start with when he began treating client. If before injury what type of treatment. Cover pre- injury treatment or lack of treatment so jury hears pre-injury condition from you rather than defense during cross examination. On treatment for injury discuss  initial subjective presentation, examination (covering objective findings), diagnosis (making sure more probable than not caused by injury mechanism), and treatment plan.

Illicit testimony on significant appointments. Cover subjective presentation and examination findings  (which is objective evidence of injury). Cover referrals such as physical therapy and diagnostic studies. Elicit testimony on any significant medical record outside our doctor. Also have doctor explain significant diagnostic findings and how they were caused by the injury.

Unless waiving specials, have doctor testify all treatment he gave and referred is necessary to address client’s injuries. Get testimony that bills for necessary treatment are reasonable. Cover future medical care necessary to address continuing conditions as well as reasonable estimate of future medical costs.

Cover disability or impairment rating based on AMA Guidelines, impact on activities, impact on employment, pain and suffering (past, present, & future).

Conclusion. On a more probable than not basis is condition a result of the injuries sustained in our collision (causation). Discuss plaintiff’s history of  subjective presentation being objectively consistent with subjective presentation. Discuss plaintiff’s dedication to recovery. End with future residuals being more likely than not.

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