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It Is Not What You Say But How You Say It : Witness Credibility Mark T. Arden Chappell Smith & Arden PA
Credibility • “the quality or power of inspiring belief” • “Credibility leads to trust which is the pillar of persuasion.” • Whose credibility comes into play? • How is it gauged? • What part of the workers compensation system does it affect?
Whose Credibility Comes into Play • Claimant – Inability to do (not quantity quality and dependability) but any work (light duty to the ridiculous hypo (inspector)) -(exaggeration of symptoms,- body parts affected (hurts all over),- complaints of pain (11 out of 10), -degree of disability (showing up in scooter) Jail- crimes post accident (roofer case) “Prevent your client from snatching defeat from the jaws of victory.” Judge Hearn • Employers ( number of employees, (just paying claimant out of goodness of his heart while claimant was “performing favors.” Light Duty vs. Punitive Duty( ex. Engineer to night janitor) Paying workers under the table and outside of the system. (Hugo Santee helicopter case) • Fact Witnesses (version of the events not credible- (Never saw the claimants accident (did here a big thud and the claimant cry out (witness excused in the parking lot) • Nurse Case Manager-Correspondence to medical provider – diabetes caused? But not diabetes aggravated or combined with work injury? is it the truth – the whole truth when you ask the question- as a patient advocate are you managing the case or the claim when you ask just whether it was caused by the accident. Remember you sent them and had treated ortho and diabetic issues- paid for shoes- treated ulcers. • Physicians-Narratives different with each patient-cut and paste- gender correct- information consistent – conclusions credible –reliable? Histories believable? Trustworthy source of expert opinions?
How Is It Gauged? • Observation of demeanor/ assessment of intangibles that are evident in live testimony (non verbal cues)-perception, memory, candor of the witness (nervousness- eye contact-body language- poor recollection-avoidance behavior-change in pitch and tone of testimony) Hard to accurately assess (trained investigator only 65% of the time) statistics vary- conclusion constant-non verbal cues needs to only be one of the factors considered in an overall assessment of credibility. (claimants attire, haircut- t shirt testimony) Be careful of judging a book by its cover- • Consideration of varied verses reliable and constant testimony and history in the accident report verses medical care- careful of the poorly educated (3rd grade vs. 8th grade education). • Evaluate witness credibility on these considerations and give weight to be accorded to the testimony/evidence proffered.
What Part of The Workers Compensation System Does It Affect? • Affects both the indemnity, medical and legal costs in the claim • Inconsistency whether unintentional or by the direction of a witness or a party are primary factors in pulling cases into litigation
How to Build Credibility • Be consistent by telling the truth (client rock) (explain to the client or witness the importance of telling the truth) • Establish bolster credibility from unbiased third parties • Depose authorized treating doctor not just for impairment, restrictions and future medical but also are the claimant’s symptoms consistent? Evidence of malingering? Kept appointments? Compliant with treatment? Genuine interest in improving medical condition. • Subpoena personnel file, review performance evaluations, look at work history compared to claim history. Compare all documents containing client’s personal handwriting or signature. • Supervisors depositions (third parties)( Hospital Nurse- substantiated claim- explained the gap in reporting vs. treatment – didn’t want to testify- loyal employee of the hospital? Mindset of third parties • Prepare your client - convictions, prison time, divorce, bankruptcy, prior workers compensation claims, prior car wrecks or accidents affecting same body parts- drinking, smoking, listening to the question – not being coached- being prepared and reminded to tell the truth and how not to tell a l lie- (even a small one)
If you tell the truth you don’t have to remember anything.” Mark Twain • I like to think of lies in the comp system as rocks-weighing down the system and costing us all additional premium regardless of the outcome • Claimants- fabrication to exaggeration • Employers- poor reaction to complete avoidance of responsibility • Medical providers-omissions to misstatements • Carriers – managing the claim and not the medical care- the whole truth vs. solicitation of half the inquiry from medical providers • John 8:7 “He who is without sin among you ,let him be the first to throw a stone at her.”