Credibility Again

Credibility is a persistent topic. It has been featured here time and again. See The Chair of Truth (February 2018), Magic Words (February 2021), Credibility from Vulgarity (October 2021), and Credibility - a Conversation (December 2019). Each of these makes an important point. In a nutshell, we cannot assume that credibility is determined by a judge. The fact is the vast majority of disputes never see a judge. Thus, credibility with other decision-makers is critical (think adjusters, managers, doctors, nurses, and the list goes on). Time and again, I am asked what makes a witness credible. 

I often stress that credentials are not the key. They are essential - no one wants a doctor that went to medical school at "Bob's School of Medicine and Tire Emporium." That is fair. But is there some serious distinction between this university and that one? It is possible, don't take that wrong, but it is unlikely to be a patent distinction. Usually, I hear the argument of obviousness from those who attended Medical School at the Ole Miss of the North (that will ruffle some feathers, but life is too short not to laugh sometimes). I have some affinity for Ole Miss, though I never attended. See I never knew Oxford had a Comma (March 2017). 

The discussion of credibility is not new. And, particularly in personal injury litigation, it has been critical for many decades. Whose version of the facts is true? Which doctor's opinions are persuasive? In Florida, those questions remain (for now) with the Judge of Compensation Claims, the "finder of fact." But stay tuned to what video hearings may bring to appellate review in years to come. See Ford v. Boynton - Reheard and Revised (August 2021). The appellate deference to us trial judges may be on borrowed time. Or, perhaps the appellate judges will eschew meddling in credibility as a defense against a tsunami of requests?

But, the Florida Supreme Court rendered an insightful and informative decision a few years back in 1951. It is rarely cited, and less often studied. It is a critical piece of analysis and worthy of time invested. In it, the Court concluded that workers' compensation adjudicators (Deputy Commissioners at the time) should make credibility decisions and those decisions should be respected by the appellate courts:

"this Court should not substitute its judgment for that of the chancellor or jury and reverse the findings of facts made by either unless there is no competent, substantial evidence which sustains them." U.S. Cas. Co. v. Maryland Cas. Co., 55 So. 2d 741, 744 (Fla. 1951).

This brought the "competent substantial evidence" review standard to findings by administrative judges and similar (Deputy Commissioners). Thus, the case is significant. But wait, there is much more. The Court observed:

1. "Many workmen's compensation cases turn upon a proper evaluation of medical testimony." 
2. "The Deputy Commissioner may observe leads, not apparent upon an examination of the transcript of the evidence, which point unerringly to the correct findings of facts." 
3. "Doctors are human." 
4. "Doctors may be appraised as witnesses and their testimony evaluated, in much the same manner as other witnesses and their testimony are judged and estimated." 
5. "Doctors vary in degree of ability, as do lawyers, scientists, executives, educators, clergymen and other professional as well as every-day business men." 
6. "The fact-finding arbiter is usually in a better position than the reviewing body to judge the ability, experience and reputation of the various so-called expert witnesses who appear personally before him and to determine the weight which should be given their testimony." 

Truisms all. And worthy of remembering and reinforcing. But, what makes testimony credible? The Court noted the Ole Miss conundrum discussed above. It noted that: 

"One doctor may have a long list of degrees behind his name, while another has but few." 

This is the critical point. The forgotten point. The obfuscation point. The argument that you should believe this doctor because of how many initials and abbreviations follow the doctor's name is potentially specious. The argument that this doctor should be believed simply because she trained at Ole Miss (or the "Ole Miss of the north") is potentially as specious. The Court explained:

"However, the latter (with a few credentials) might, by his demeanor on the witness stand and by his freedom and clarity of expression, disclose a familiarity with the subject under discussion which far exceeds that of the obstensibly better educated theorist."

Do you want a doctor that has treated patients or one who wrote a theoretical book about treating patients? Either choice might be valid in a particular situation. Jim Gaffigan does a very funny stand-up on being "the best brain surgeon." He questions how you would measure such an accolade. He reminds that even the "worst" brain surgeon is nonetheless a brain surgeon (the same likely applies to rocket scientists, lawyers, and host of other examples). But, in the end, the decision is not necessarily who is the "best" brain surgeon, but who is the best brain surgeon in a particular setting. And how would we decide?

• "demeanor on the witness stand" 
• "freedom and clarity of expression"
• "familiarity with the subject under discussion"

And, perhaps we add, composure under criticism (cross-examination). That is, how well does the witness hold her or his (insert alternative pronouns here) ground, explain the persistence of the conclusions, and accommodate the points raised in contradiction?

In the end, it is likely not who you are, where you went to school, or how many abbreviations follow your name. In the end, it is likely more what you know, how you explain your process and conclusions, and how well you educate the finder of fact. It is not likely to be enough "that" you believe, but "why" and "how" you came to believe that matters. 

If that is because you went to Ole Miss, say so and explain it. If the fact you went to Ole Miss instead of Stanford does not matter, then explain what does matter, and do so in a manner we can understand without a medical degree. And do it concisely and frankly. As Franklin Roosevelt is purported to have said "overstate and bore understate and score." 

And in the end, if you encounter a finder of fact who makes decisions solely on the fact that you went to Ole Miss, you may find yourself thus on a slippery slope. That person might as readily doubt your credibility because of the coffee you drink or the way you wear your hair. Each is perhaps potentially as relevant as your attendance at Ole Miss back in the day. You cannot control such conclusions. But you can always explain your perceptions, your process, your conclusions, and all the rest of the "why." Go with these and your odds increase.