The Stress of Testimony

According to The Standard, the portal person "drove around during parts of his testimony, (and) became frustrated with the process." According to Huff Post, the portal person added "that he was 'so stressed out' and didn’t 'want to deal with this anymore.'" He is quoted as adding "I’m tired . . . I don’t want to deal with this court case . . . everybody’s got problems and I don’t want to deal with this no more.” Although there those who may not view him as the ideal witness in general terms, he is thus an ideal example of a fact witness pulled unwillingly and perhaps unwittingly into litigation in which he has no real interest. 

When the testimony concluded, others involved in the case were heard to comment upon it in the courtroom. They were, in the perspectives of some, critical of the witness' behavior (vaping, driving, etc.). Their comments led to the news coverage that in turn led to this post. Their comments potentially trouble the witness who has already expressed discontent and frustration and perhaps instills trepidation and hesitance in readers who themselves are one day called as such independent witnesses. In short, the commentary in court regarding perceptions of the testimony were perhaps both unnecessary and unwise. 

The lessons from the case are many, including the challenges of disputed testimony among parties. There is reasonable chance of disagreement in trials, and that goes without saying. But, the challenges of acrimony, emotions, and interests are a persistent challenge. The presence of the independent witness can be critical and enlightening. However, it is as critical for the parties and judge to be respectful of their independence, disinterest, and time. 

Lawyers should discuss subpoenas with such witnesses, provide explanation of the need for them, and accommodate their lives in any way reasonably possible. A prime example is affording the opportunity to testify by video deposition at a set time and date, rather than the witness sitting indefinitely in a hearing waiting room, and hoping the process concludes sooner than later. Lawyers should be upfront with witnesses about the plans for trial, when the witness will be needed, and thereafter with updates ("because of ________, I will not be able to call you to the stand until after lunch"). 

Judges should remain aware of the potential for proceedings to interfere with the independent witness' life and livelihood. Everyone should remember the witness is likely to be missing work or time with family to be present for a deposition or a trial. When possible, such witnesses may be examined "out of order" or otherwise accommodated so that they are not waiting, and waiting, and waiting. Their presence is a benefit to the system of justice, the operation of the proceedings, and challenge of deciding the case. 

Those who would have them testify (parties and lawyers) should strive to make the litigation process as unobtrusive and as facilitative as practical for them. Judges should support those efforts by affording counsel breaks in trial to speak to waiting witnesses and to address their concerns. Judges should be grateful and acknowledge delays that occur ("thank you for your patience with this process"). Everyone in the trial should remember that such witnesses are pulled into such testimony involuntarily and that the witness is likely to see this service as an imposition or at least inconvenience. Courtesy, communication, and acknowledgement may each go a long way to assuage the witness' feelings and to facilitate an orderly conclusion of trial. 

By Judge David Langham

Courtesy of Florida Workers' Comp