Eliciting Effective Testimony

Friday, July 11, 2014 | 0

In June I attended an educational program and the conversation somehow turned to effective advocacy. It is worth
noting that many attorneys think they are effective. Some think they are Perry Mason (for those of you too young to recall this TV lawyer, he managed to elicit amazing confessions on cross-examination, often after miraculously producing the "smoking gun" document that was unassailable).

Most are simply not Perry Mason, and some are just not very effective. It is rare when you pull that "smoking gun" from the file and watch as the witness melts like the wicked witch of the west recoiling from water. Often times such maneuvers are anticlimactic and some attorneys have told me they have seen the "smoking gun" maneuver be downright distracting.

I do not say that to insult attorneys. I say that because we all need to remain conscious that we can do a better job. I have read thousands of depositions, which are the main method we use in the workers' compensation market to both memorialize and present testimony. How can an attorney be effective? At the outset, remember in workers' compensation there is no jury. Pulling that document on cross, with a flourish, and proffering it to impeach with bravado is unlikely to be as important as the logic and explanation counsel provides.

Reasonably early in my litigation career, I was schooled in expert testimony by attorney Paul Doolittle. We were scheduled for a psychiatrist's deposition. Mr. Doolittle arrived early as the doctor was his witness. In that era it was common for injured workers in Florida to select their own treating physicians. As a result, he was sitting in the doctor's office guest chair, leaving one other guest chair for the court reporter and relegating me to a beanbag chair on the floor. Not very dignified at the time, but quite a memory in retrospect.

At the time I looked up to Paul in that deposition (I was on the floor in a beanbag and so I was looking up to everyone). In retrospect shortly after that deposition, I looked up to Paul (all kidding aside) for the job he did, his organization, and the education he provided me.

At the time, I was used to the expert testimony paradigm in which the medical records were attached, a few conclusory opinions were highlighted from the records, and the "reasonable degree of medical probability" (yes, it was that long ago) was confirmed. Mr. Doolittle took a different course that day though, and taught me a lot about how to construct a persuasive evidentiary foundation. I used his process often after that and have been grateful to him for teaching it to me. It occurred to me as I told the story at the recent educational program that I likely never thanked him for the lesson.

What Mr. Doolittle did that day was never taught to me in law school, but it should have been. It was very effective. He began by confirming that the psychiatrist had reviewed the treatment records of other providers with which he had been provided. He then read from the Diagnostic Statistical Manual, confirming the definition of the diagnoses for which he was claiming compensability. He asked the doctor to agree that this was his diagnosis of the claimant. He then asked if that diagnosis was documented on his office note of a particular date (first mention) and that it was reiterated in a series of the psychiatrist's office notes thereafter.

This was not a long process, a few simple questions. Part of the power of the way he organized this is in the fact that he got the conclusions out of the way early, succinctly and clearly.

Then he got down to business. This diagnosis had a variety of specific criteria. The one that sticks with me to this day had to do with weight, gain or loss, I do not recall. Mr. Doolittle asked if the applicable symptom (weight gain or loss) was a criteria for this diagnosis according to the DSM, and the witnesses acknowledged. Then he proceeded through about 10 office notes in the treatment records and asked the psychiatrist to acknowledge the claimant's recorded weight on each such visit, concluding with the question to the effect of "does that progression of weight change satisfy the criteria for this symptom of (diagnosis) in the DSM?" (again, or something to that effect). The doctor again affirmed.

Mr. Doolittle went through the whole list of symptoms/criteria for that diagnosis the same way. The detail and specificity were compelling, the organization of the information was impeccable, the effect was logical, organized, and therefore impressive. My cross-examination was what it could be. My expert did not concur with his and so the case was not over. My point is not that the examination will always put the case away, like a knock-out punch. The point is that if the testimony is well organized, logically progressing through the story to be told, and opinions are reinforced with factual support, it is powerful.

What is not powerful in my opinion is the "my dad's bigger than your dad" argument that we (likely not the ladies, but they nonetheless likely heard the boys) exchanged on the grade-school playground. As children we argued for hours about things, rarely making points or providing support, but just arguing. I would suggest that too much of that has survived into the practice of law. My expert is bigger than your expert is rarely persuasive.

That line of thought is often seen: "doctor tell us about your experiences at Harvard and how they led to your diagnosis." Certainly, making an evidentiary record of your expert's qualifications is important. However, there is no magic that comes from Harvard, Yale, or the Mayo Clinic. Fine institutions all, certainly, but just the affiliation with one does not render that person's every future thought unassailable.

What makes the opinion(s) or conclusion(s) unassailable (or at least harder to assail) is the ability to lay out the logical progression that leads to the conclusion. My third grade teacher was right when she kept telling me to show my work (It was after law school that I realized that she was also right that to my chagrin I would find a way to use math in my everyday life). In school, I knew the answer, I wrote the answer, but I got it wrong. Why? I did not show my work.

Asking the doctor if she went to Harvard, diagnosed this, believes it is related to the work accident, and holds her opinions to a reasonable degree of medical certainty is much like writing the answer. I am not saying you cannot win with it. What I am saying is that you are far more likely to win with it if you show your work. Walk the witness through the process with some specificity, some facts, that logically lead to that ultimate opinion you want to prove.

I have seen it done by many attorneys. I have seen it done well and even exceptionally. I have also seen attorneys try to channel Perry Mason with their smoking gun document. I think the latter is a gamble that lacks the probability for success of the former.

David Langham is deputy chief judge of the Office of Workers' Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.