There is a great deal I don't understand about medicine (engineering, accounting, the list goes on and on). The legal practice is full of people who strive to advocate for their clients, but who likewise perhaps do not have the best grasp on the intricacies and complexities of all these sciences, avocations, and pursuits. Thus, the law relies on experts. Those who channel their study, experience, and activity into a particular subject are allowed to provide a broader testimonial perspective than factual witnesses (was the light red or green). These experts are allowed to testify regarding facts and their opinions.
When I speak at conferences, I am often asked about credibility, which is a critical element of trial and testimony. Those questions do not tend to come from fact witnesses, but from experts. For whatever reason, it is primarily doctors that ask me "how are credibility determinations made?" I strive to answer that systemically. See Opioids and Credibility (January 2020). I have also written on the topic for the benefit of physicians specifically
The topic returned to mind recently in preparing for a presentation. I reviewed a variety of trial orders that cited the Florida First District Court's 2019 decision Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133 (Fla. 1st DCA 2019). See It isn't that the Wind is Blowin' (June 2021). The implications of that decision, the laudable effort of both majority and dissent to make sense of the oft-intertwined yet distinct conditional tests of "arising out of" and "course and scope of" have been foundational to a variety of trial decisions in the years since.
However, Rodgers v. Winn Dixie, Case No.: 20-010060KFO, resonated for the additional reason that the credibility of testimony played a significant role in the decision. I was reminded of an interaction with a physician several years ago in which the inquiry was "How does a judge determine credibility." I provided answer after answer, but this physician responded to each with some re-phrase of this inquiry. At one point, I jokingly objected "asked and answered," which garnered a laugh. The doctor then asked, again, "Seriously though, what makes testimony credible?" I was then reminded of Cool Hand Luke (1967)("What we've got here is... failure to communicate. Some men you just can't reach."), but did not voice it.
Credibility, in truth, is much like beauty. It is, and will always remain, in the eye of the beholder. That is frustrating to those who testify often. That is more frustrating to the expert medical witness in a system and process (workers' compensation) in which the law demands objective medical evidence, reasonable medical certainty, and other precise delineations. The witness is directed, constrained, and made to show her/his work. Is it so extraordinary that such an expert might expect as clear an expectation on the determination of credibility? Unlike medicine, which is part science and part art, the determination of credibility is mostly art, subjective, and difficult therefore to quantify, delineate, or explain.
In a perfect world (from some perspectives), issues such as causation, nature and extent of dysfunction, recovery, advisability of treatment, and more would be scientific. Scientific in that empirical data and replicable experiments would render those decisions absolutes. But science cannot deliver that and so we have doctors consider such facts and science and then render opinions.
What is appealing in Rodgers, however, is the trial judge's notable effort to explain particularities. These are anecdotal, and isolated to a particular case. However, they are also perhaps exemplars from which one might draw parallels and even formulate "best practices." This litigation involved opinions from expert physicians. As is often the case in litigation, the experts disagreed, and therefore the judge had to make credibility determinations in both accepting and rejecting opinions.
The judge rejected on expert's opinions, noting the "testimony was conclusory, inconsistent, evasive, and unnecessarily combative." In a nutshell, perhaps this is a roadmap regarding how not to testify? The trial judge then proceeded to provide a specific explanation of what was considered important.
The First Criticism:
The doctor "offered little explanation to give the undersigned any confidence in this conclusion." Lesson one for expert witnesses (from my first algebra teacher's admonitions): "Show your work." I recall vividly being reminded repeatedly that knowing the answer would not gain points on the math test. To succeed, I would have to show my work. Concluding what the answer is may be half the battle, but if you cannot describe and delineate your path to that answer is undermined by not showing the steps. You see, in a nutshell, if us judges had the medical expertise and training, there would be no need for experts. Experts are in litigation to aid the judge or jury. To do so, show your work.
Second Criticism:
The judge found that the conclusion "is somewhat inconsistent with his testimony that many people slip and fall and do not have huge lacerations and a loss of consciousness." Lesson two is that inconsistency is challenging for many people. If there is inconsistency, it is largely the lawyer's role to point that out (cross-examination) and thus prompt an explanation. But when the lawyers do not drive that, explanation and edification remain critical. If there is an 800-pound gorilla in the room, introduce it to everyone and explain why it does or does not matter.
Third Criticism:
The "limited, conclusory statements in support of compensability offered little to no substance to convince the undersigned." Lesson three is that conclusions are based upon foundations every bit as much as houses are. But, driving by, we see the house. We have to assume there is something holding the house up. But is it upon a slab, pilings, basement, or soft earth? Before you buy, you would want to know. What is the foundation of the opinion? What is the substance to your conclusion on the ultimate issue (it is or it is not)?
Fourth Criticism:
The judge found the doctor's "testimony was also inconsistent." There was testimony as to the history (a foundation element) provided by the injured worker. However, the expert later conceded regarding a particular point "The claimant made no such statement." Thus, one element of the foundation was demonstrated to rest upon a faulty premise (unstable ground). If one pillar of a house's foundation sinks into the earth, what happens to the structure? The house may not collapse, but there will be some effect. The more pillars that are demonstrated to be inconsistent or otherwise flawed, the more unmarketable the house may become.
Fifth Criticism:
The judge noted that, in light of the damaged pillar (the patient did not say such and such), the doctor's "testimony offered little to no explanation from a medical standpoint as to why be believed the claimant slipped and fell." This could arguably be a return to the First and Third. Show your work and explain the foundation. However, it is is broader. If your contention is that "_____ has the best chicken sandwich on the market, because of those outstanding pickles," it may be damaging to learn that the company does not include or even offer pickles. When confronted with that, can you make the case it is still the best sandwich? What of the breading, the bun, the flavor? What is the explanation for the conclusion ("it is the best")?
Sixth Criticism:
The judge found the doctor "was evasive." The lesson, when asked a question, answer the question. This is a challenge exacerbated by the knowledge divide. What seems congruous and responsive to the expert may not seem so to the lawyer or layperson. It is possible for evasiveness to be a misconception. However, it is also possible for evasiveness to be evasiveness. Being evasive and defensive is not a path to credibility. If explanation or equivocation is necessary, say so. When presented with a question provide the answer first and then explain or at least ask permission to. E.g. "Is _______ the best chicken sandwich?" - "well, if it were all the online feedback would be positive . . ." Instead try: "yes it is, because of this, or the absence of that, and consider the feedback on the Internet that says . . .."
Seventh Criticism:
The judge found the doctor's "credibility was undermined by his unnecessarily combative responses." When a lawyer explained she did not have a particular record, the doctor retorted "Well, you should.” When asked about faith in testing, the doctor deferred answering and said "Well, I think that you should actually read about it before you ask me the questions about this.” When asked about the foundation, the doctor responded “From my testing, counselor. Testing T-E-S-T-I --.” Finally, the expert assured one of the lawyers “Counselor, trust me, I know what I’m talking about and you don’t.” The judge found that the doctor was more interested in "arguing and belittling the questioning attorney than answering questions."
Side Note:
Expert testimony in workers' compensation is rarely live or auditory. Doctors are usually deposed and the testimony is presented in a cold, typewritten manner. There is no voice tenor, tone, facial expression, or other cues. The words written are only more important because those other contexts are missing. Thus, something said in jest to the amusement of all present may nonetheless come off as condescending or demeaning in the cold record. On one episode of House, an administrator is presented with a question about hallucinogens' and agrees. When Dr. House walks away, she follows and says "I was being sarcastic!" Dr. House presciently replies "Wouldn't look that way in the court transcript." And, that is the point. There is no font for sarcasm, humor, or innuendo. the record will read on its words. Choose them carefully.
Are these criticisms conclusive? Is this list exhaustive? Is the determination objective? No, no, and no. See the primary point above, credibility determinations are subjective and not scientific. Another judge reviewing the testimony in this case might as easily have reached other conclusions. However, the lessons are pure gold. However, this order illustrates several considerations that are worthy of study. The expert's role is to aid the finder of fact (judge or jury). The path to that is clarity, brevity, accuracy, and explanation. If you find yourself frustrated, aggravated, sarcastic, or confrontational your credibility will likely be impacted.
