A recent seminar afforded me the opportunity to engage in an intriguing conversation with a physician. The topic was witness credibility, and the physician's desire to better understand what impacts a judge's perspective.
At the outset, I disabused the notion that persuasion of the fact-finder is necessarily the critical consideration. There is a misperception among many that cases mostly resolve through adjudication. It has been my experience, to the contrary, that the vast majority of disputes are resolved by the parties, on their own terms, through some form of negotiation or mediation. Thus, how credible one side appears to the other side, the lawyers, and the mediator, may be equally or even more important than how credible one might appear to the finder of fact. Those resolutions are driven in part by how credible a witness is perceived by more than the adjudicator. Credibility permeates disputes, and perceptions or criteria are therefore critical in a far broader context than this particular physician appreciated.
This physician was in search of a “golden ticket,” or “silver bullet.” The physician wanted to know what “the” path to credibility would be regarding medical opinions. This analysis is flawed at the outset, because there is no singular, identifiable, answer (unless we program a computer to be the finder of fact for everyone, with a singular and measurable set of criteria in some algorithm). What causes a witness' testimony to appear credible is, like beauty, largely in the eye of the beholder. What may drive an attorney to believe in a particular witness may or may not similarly inspire a another attorney, risk manager, adjuster, worker, or judge.
In that exchange, discussing a hypothetical question regarding a need for a particular surgery, I mentioned that I would find it relevant to know how many times the testifying expert has performed that surgery. This was met with harsh criticism. The objection was this particular physician’s perspective that not all surgeries are necessary and that such a relevance benchmark might discount the opinions of a physician who is more reticent, analytical, and surgery–averse. In fairness, either of these may or may not be an invalid argument. Read on.
The tendency is for human beings to search for touchstones regarding credibility. They will have various personal touchstones based on their personal proclivities, experiences, and biases. Factually all human beings have some inherent bias against which they may resist and struggle. Some people ignore or deny them. They are convinced that they are personally, inherently bias-free. The truth is that we must each recognize that we have them and struggle against them. We all have them.
In the end, the credibility of opinions is rarely based upon a particular college attended, or clinic affiliation. There are perhaps some who are impressed with a Harvard degree or a Johns Hopkins fellowship. But generally, credibility is far more dependent upon the witness's ability to develop and describe a construct, that is a verbal illustration of both process and conclusion. In the immortal words of my third-grade mathematics teacher, “Show your work." Some of the most credible physicians I have seen testify utilize diagrams, analogies, and models to illustrate points, enhance understanding, and thus establish credibility.
Asked to solve a problem, many of us can produce an answer. That answer alone did not work in grade school, even though in math an answer is more readily "right" or "wrong." Getting the "right" answer, even when demonstrably correct, did not win the day in third grade, and I would suggest it may similarly not win the day in a more opinion-centric (less demonstrable) setting of expert testimony.
An added challenge in medicine is that the answer may be part scientific (subject to independent objective verification by repetition), and part “art.“ The “art“ portion may be reliant upon the scientific results and data, but may likewise include intuition, perceptions, trial and error, and other more human, flawed, subjective additions to the overall process. Certainly, if the witness is able or willing to only produce the answer, the ultimate conclusion, that may be persuasive. However, it is suggested that the ability to show the work (describe the process and path) is more likely to be so.
Is it really so surprising to hear that credibility determinations are similarly multi-faceted? It should not be surprising that making the listener understand that thought process, its probabilities, and how it supports a conclusion will be in most instances more critical than the conclusion itself. It is not necessarily that you have or have not performed the particular surgery some volume of times. It is how logical your explanation is regarding the recommendation in this case. That may, however, include how many times you have performed the surgery, or declined to do so. If that is not an appropriate metric, the witness should be the one to say so and then to explain logically why and how they reach that conclusion.
In the end, the persuasiveness of the testimony comes in large part from the ability to explain the various inputs, empirical or not. What does the science show (objective), what does the patient contribute regarding symptoms (subjective), what does the witness contribute (past experience, study, analysis), and what do studies, publications, and other collaborations contribute? How have all factors contributed to this witness' understanding of the medical issues? In the end, the "answer" is important, but providing a clear narrative as to the path that led to that answer is critical. In the end, that path explanation is where the witness gets to illustrate why her/his ultimate "answer" deserved credence.
But, if instead you search for some "golden ticket," an easy, effortless, recitation or touchstone that will bring instant credibility in any circumstance, good luck. If you find it, let me know. There is always a chance there is a unicorn out there. Just because no one has ever found one is perhaps no reason to stop looking. In the meantime, show your work. Tell the story, describe the path, and thus illustrate both that your conclusion (the answer) and your process (the "work") make sense. Credibility comes from a variety of inputs, and the manner in which they are appreciated, described, and considered by the witness that renders that opinion conclusion.
