In 2014 a divided Florida First District Court panel decided Trejo-Perez v. Arry's Roofing, 141 So. 3d 220 (Fla. 1st DCA 2014). It addresses what courts have come to refer to as "magic words," what some might refer to as "form over substance." It is the merits of a case that should drive its outcome, rather than whether someone parses specific words from the statute in support of a conclusion. This is seen perhaps more often in the testimony of experts, as was the case in Trejo-Perez, but thorough lawyers will formulate questions from specific statutes for a variety of reasons including specific exceptions to hearsay rules, foundations for authentication, and more.
Time and again, I am asked to explain the process of determining credibility. It is a difficult topic as much of the process is subjective and known only to the person making such a finding or conclusion. There is the potential in such determinations for significant distinction between various judges. That is important because we are each some combination of who we are and what we have experienced (Nature v. Nurture, 12.11.18). So, much like beauty, I suggest that credibility is often "in the eye of the beholder." Thus, knowing the listener may be as critical an element in credibility as any other.
Presented then with the generalized question of credibility, I have focused many an audience upon Aristotle's three foundations of credibility, "pathos," "logos," and "ethos." The point is likely not in choosing one of these paths or perspectives, but in recognizing any of the three may be critical to any particular potential listener. Beyond that recognition is the suggestion that the better one explains the "why" of any such analysis, the path leading to a conclusion, the more credibility will likely be perceived by a particular listener or reader. Anyone can express an opinion ("based upon my education, training, and experience, silver cars are the best"), but if you can explain how you reached that (testing, surveys, etc.) the more persuasive it may be.
In Trejo-Perez, there was a claim for a "Spanish-speaking psychologist," which specific recommendation had been made by the treating physician. Notably, this testimony was "unrebutted," and supported by the physician's opinion that such an evaluation, specifically, was "medically necessary." The employer responded by authorizing a psychiatrist, who did not speak Spanish, and additionally provided a translator. Litigation ensued. The medical necessity of the physician's language capability was the central issue.
The Claimant prosecuted the petition to effectuate the specific recommendation, and the trial judge denied the claim for a "Spanish-speaking psychologist"; this was essentially a conclusion that the employer-provided care (English-speaking psychiatrist with translator) was sufficient. She concluded that the chance for misinterpretation was not "medical necessity." The claimant therefore sought review by the Court.
The Court affirmed the Judge's denial, but not unanimously. It noted that the doctor's testimony quoted the statutory requirement, that is that a Spanish-speaking psychiatrist is "medically necessary." Further, the doctor's conclusions were opined to "a reasonable degree of medical certainty." However, the Court explained that
“the [JCC's] determination of reasonable medical certainty depends on the substance of the evidence, rather than the use of the ‘reasonable medical certainty’ terminology, or any other so-called ‘magic words,’ by a medical witness.”
Even the fact that the physician's testimony was unrebutted did not change the outcome. The absence of contradictory evidence, an opposing opinion, did not alter the Judge's conclusions regarding "medical necessity." What might change that outcome is likely not which medical school, fellowship, or certification is demonstrated by the doctor's curriculum vitae (Ethos). Of course, that would come down to the thought process of the particular judge.
What might more likely change the outcome would be more focus on the process of, the support for, the opinion being expressed (Logos). If the opinion is supported by a thorough explanation of why, that may alternatively be more persuasive than the expert's education and background (Ethos). Many believe it is the journey or process that is likely to bring credibility, not the parroting of statutory words. Why did the physician perceive a Spanish speaker as more likely to bring value to the worker's treatment than an English (or French, Chinese, Russian, Hindi, etc.) speaker aided by a translator?
It is imperative that the trial judge is afforded great responsibility in the determination of credibility. That deference was described in Ullman v. City of Tampa Parks Dep't, 625 So.2d 868, 873 (Fla. 1st DCA 1993), and has been cited many times since. That foundational responsibility itself may be direct (the experts' credibility) and can be far broader (the credibility of other evidence upon which the expert relied. Prather v. Process Sys., 867 So. 2d 479, 480 (Fla. 1st DCA 2004)).
That is not to say that "reasonable medical certainty" and "medically necessary" conclusions should be avoided or forgotten when eliciting testimony. Similar conclusory statements gleaned from other statutes and rules may likewise be important and persuasive. Thus, there is no harm in eliciting such support for expert opinions or other testimony. However, that is to say, that the statutory quotes alone may simply not be enough in the absence of substance to support those ultimate conclusions. The careful attorney will focus on both the conclusion and the path that led to it. The better the path or process is understood by the judge, the more likely the conclusion or opinion will be persuasive.
