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A recent article in the Washington Post caught my eye, it focuses on the "murky process of judicial bypass" in the realm of abortion. The article is highly critical of the law and those who are charged with interpreting it. Before the reader becomes too distracted, no this is not a column on abortion. However, some pertinent points from the article, from a legal perspective are as follows:
"Doe had testified that she had a B average, but Smith noted that her academic records showed a lower GPA. The inconsistency, he wrote in his decision, suggested 'either a lack of intelligence or credibility.'”
"Making the case for a minor’s maturity is inherently slippery, legal experts say and whether a petitioner can successfully make that argument depends largely on the judge’s discretion and disposition."
"Not all states include criteria for which to judge maturity. Florida does"
"Florida does not establish any rules or guidelines to help judges or attorneys understand the boundaries of judicial bypass for future cases. Rather, the appellate judges seemed to be concerned that the initial judge was 'overly involved' in his questioning."
"The hearings are small affairs and typically go quite fast."
"But that doesn’t mean the process isn’t intimidating for teenagers. It’s not unusual for them to seem 'timid' or 'curt' in their responses."
"the trial judge also referenced her short answers and deference to her lawyer as indicators of her immaturity."
In large measure, one might voice identical or similar conclusions about the workers' compensation benefit litigation process, or any judicial proceeding involving testimony. Cases may turn in large part on the credibility of witnesses, in workers' compensation, often that of the employer or employee. And, without a doubt, conclusions of credibility can be highly subjective and dependent upon the impression a witness makes when testifying.
That peril is less important perhaps with testimony that has been transcribed, a witness appearing only by deposition, but it remains a peril even there.
The grade point average example above is a classic example of a factual flaw impacting credibility. There are studies that support the eyewitness can easily be wrong about various details. Thus, it is not uncommon for a witness to provide testimony about some detail that can be readily contradicted with another witness, some document, or in today's world with a short video. See Assume Everyone is Watching (September 2015). Factual contradictions demonstrating one inconsistency may be argued to support a finding that some witness generally lacks candor or credibility. Or, it is possible that the witness merely perceived or recalled some detail mistakenly.
As regards the judge's discretion, any case may "depend largely" on what evidence the judge allows or does not as various objections are raised. And, it is common for attorneys to either fail or elect not to make some objections. There are challenges with appearing too adversarial, to alienating the court or jury. The abilities of counsel to make objections and to provide lucid and thorough responses may significantly impact what evidence is considered in the end analysis. Relevance and weight of evidence is often subjective and rulings therefore could be difficult to predict in one case or to duplicate in another. Obviously, that may affect the outcome of the particular case.
The absence of criteria on any topic can be a factor, not merely as to "maturity," as cited in the article. Various cases require findings dictated by the workers' compensation statute, but for which there are similarly no clear-cut criteria. An easy example is what is "for the best interest of the claimant." Another is "as may appear to the judge of compensation claims just and proper." Section 440.16(1)(b)2. These kinds of phrases leave the trial judge with responsibilities, but also to interpret and progress as best one can. With such requirements, but without criteria, the prospect of varying outcomes in various proceedings is perhaps more likely.
The outcome in the bypass article is also deemed a concern by the author due to the judge being "'overly involved' in his questioning." The Code of Judicial Conduct certainly precludes a judge becoming partisan, an advocate. Canon 3. But, in a non-adversarial proceeding (no competing parties), a judge may be required by a statute to make determinations such as those in section 440.20(11)(b):
"The judge of compensation claims shall make or cause to be made such investigations as she or he considers necessary"
Thus, despite the Code prohibition on becoming an advocate, a statute may require active judicial participation beyond the usual role of impartial arbiter. In effect, some statutes like this direct the judge to make inquiry in what some could perceive as a partisan, or "involved" manner rather than a purely adjudicative role.
The author of the bypass article finds flaw in the speed with which those hearings proceed ("typically go quite fast") and the fact that such proceedings are nonetheless "intimidating for teenagers." This, it is contended, may lead to a witness' discomfort or disorientation and thus to an appearance of being "'timid' or 'curt' in their responses." Two points may be pertinent. First, virtually all legal proceedings have the potential to be brief and hurried. Judicial resources and time are persistently limited by the press of a volume of cases.
Second, the simple fact is that any witness, of any age, may find legal processes alien and intimidating, despite any pace or cadence perceptions. The pressures of mere social situations can lead some to timidity and withdrawal. There is every chance that a legal proceeding will bring perceptions of pressure, discomfort, and even anxiety. Those who serve as advocates are burdened in all litigation with striving to develop rapport, ease anxiety, and procure the evidence necessary to prevail. This requires patience, planning, and preparation with each witness.
The same challenge presents with the article's reference to a party's or witness' "deference to her lawyer." In the context of the article's topic, these were reportedly seen "as indicators of" the witness' "immaturity." But, in a larger context, such deference can be viewed as a more simple lack of candor. When a party cannot or will not relate facts without persistent prompting of an attorney, credibility can be impaired. This is perhaps less true on serial events (a question may be required regarding each medical specialist visited), than on singular events such as a description of the witnesses' work day activities leading to the moment of a workplace injury. The complexity and order of a series of events may challenge the memory, and thus require greater attorney detail, persistence, and guidance. If a witness is challenged, it is best to reveal that at the outset, e.g. "are you nervous today," or "is this your first time in a legal hearing."
In short, the article points out perceptions of flaws in a specific legal process, and the challenges judges face therein. However, such challenges may face the judge in conducting any legal proceeding, and therefore similarly challenge the witness(es) and attorney(s). Those would represent themselves, or represent others, would do well to consider the potential impacts of testimony, witnesses, and demeanor may have on the progress and outcome of any evidentiary proceeding. Testimony should be carefully prepared and presented with the various potentials for credibility perceptions in mind.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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