Ignoring the Elephant

By Judge Robert V. Durham, Cookeville

It is the fundamental rule of courtroom practice, pounded into the heads and hearts of litigators from the first day of law school, so basic that even those who received their legal education from Law and Order reruns know it is taboo — when examining a witness in court, never, ever, ever ask a question to which you don’t already know the answer.

Despite this indoctrination, some of us (I’m sheepishly raising my hand here) had to learn this lesson the hard way, but learn it we did.

Why is this rule so important? Because there is no worse feeling than allowing the opposing party to strengthen his or her case through your examination. It is considered wiser to argue the ambiguity in closing argument than ask the wrong question and allow the adverse party to remove all doubt. However, I would suggest there is a procedure in workers’ compensation practice where this axiom may be violated–the Expedited Hearing.

As those who practice before the Court of Workers’ Compensation Claims have already discovered, an EH is much like a trial. Witnesses, under oath and subject to examination and cross-examination, present evidence from which the judge will render a verdict. However, there are two key differences between a trial and an EH that should cause an attorney to reconsider the “fundamental” rules of witness examination—the timing of an EH in the litigation process and the interlocutory nature of an EH order.

First, an EH most often occurs early in the process and without the benefit of extensive discovery. Other than the affidavit attached to the Request for an EH, the testimony provided at the hearing is likely the first opportunity for either party to hear sworn evidence, and there has been little time to obtain medical histories. Thus, attorneys tasked with cross-examination have probably not had an opportunity to find out what the answers to their questions may be, causing them to err on the side of caution and not ask the question at all. While this is conventionally the most prudent course to take, I would argue that attorneys who automatically do so are often failing to consider the second, and most important, aspect of the EH: the fact that the hearing does not result in a final resolution of the case.

Unlike a trial, an EH does not end the claim. Additional evidence can, and most likely will, be presented to the Court, either at a Compensation Hearing or even another EH. Therefore, parties who do not prevail at an EH will always have the chance to take the proverbial “second bite at the apple.” This is particularly relevant given that the Court’s EH order will most likely point out exactly where the losing party’s evidence was deficient so they will be better prepared the next time around.

Therefore, perhaps there are times when it is better to treat the EH as a tool for discovery, akin to a witness deposition, and obtain the information necessary to fully present your position. If the questions yield favorable answers, you have strengthened your case. If you obtain damaging testimony, at least you will know it and have an opportunity to craft a response at a subsequent hearing. At the very worst, you will assess early on whether it is fruitful to move forward and may advise your client whether dismissal or settlement may be in his or her best interests.

If you do decide to move forward, using the EH as a discovery tool provides you with the other advantage to a witness deposition: the ability to lock down testimony while the witness is under oath. This can prove invaluable in an evidentiary hearing, and if done properly, can prevent the witness from having enough “wiggle room” to rectify any deficiencies in their proof at the CH.

Finally, I have to admit to a selfish reason for this article. One of the most frustrating things about sitting on this side of the bench is watching attorneys tiptoe around the elephant in the room because they fear they might be trampled. It’s exasperating when there is information out there that will help me decide the case, but I know I won’t hear it because you’re afraid to ask for it. I get it, I really do — but let me suggest that the next time you’re faced with this situation in an EH, consider facing the elephant head-on. It may just be the best thing for your client, and I know that I and my fellow judges will appreciate it.



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