Things that Do and Don’t Help Attorneys

By Judge Thomas Wyatt, Chattanooga

It seems impossible that the Court of Workers’ Compensation Claims just hit its eleventh anniversary. I’ve had the privilege of witnessing its development from the very beginning. These past 11 years have given me the opportunity to observe practices of the attorneys in our Court. I write this article to highlight a few helpful patterns that I’ve noticed, along with a few pitfalls to avoid.

Preparation does help. This includes the development of a relationship with your client and knowing what they, as well as your witnesses, will testify to in court. It doesn’t help you when it appears that you are asking your client questions for the first time at trial. Taking the time to meet with your client and, if possible, other witnesses before the trial to walk them through their testimony, is well worth the effort.

Preparation also includes taking medical depositions in a way that helps you prove what you need to win the case without getting mired in unnecessary detail. Workers’ compensation judges spend much of their time reading medical records and depositions. In most cases, you don’t need to ask about every office visit. Rather, highlight the important ones. And although you don’t need to phrase your causation questioning using the statutory language, it’s helpful if you do—there’s no ambiguity for the Appeals Board to decipher.

Along the same line, please don’t submit large volumes of unorganized or irrelevant medical records into the record. It can come across as saying, “Here’s the haystack, judge. Please find the needles that will help win my case.” The Court has a rule requiring attorneys to organize records chronologically by provider, paginate them, and provide a table of contents. And while the rule doesn’t require this, please do redact material that is not relevant to the issues at trial.

Good preparation also means writing a brief supporting your client’s position under the facts and the law. Please don’t use an old boilerplate brief with only a few added paragraphs about the current case. Do cite to the seminal pre-Reform act cases, such as Orman v. Williams Sonoma. But excessive citations to 20- to 30-year-old cases, possibly decided under a remedial construction standard, are a dead giveaway that you’re taking a shortcut. By now, the Appeals Board and Supreme Court panel have decided many of the important “new law” issues. Properly citing those cases not only helps strengthen your argument but also gives you credibility with the judges.

In probably 75% of all cases, the most important issue is the causation of the injury and need for treatment. Causation must be shown by medical opinion. The Tennessee Rules of Evidence and case law make it clear that an expert’s opinion is only as good as the underlying facts on which it is based.

So please, don’t ask a medical expert to assume facts that have nothing to do with the medical issue of causation. You don’t need an opinion from a medical expert to win a case if you can prove through other evidence that the employee is not credible about how the injury occurred. Instead, do ask a clean hypothetical question asking the doctor to assume facts relevant to causation. It’s the better tactic.

Finally, and this shouldn’t need to be said, but unfortunately, I’m saying it. Please don’t bring personal frustrations or grudges into the courtroom, nor should you belittle witnesses or self-represented litigants. Strong preparation will naturally reveal how to argue the strengths of your case and highlight your adversary’s weaknesses, all in a professional manner.

I’ll end with a confession: some of the patterns I have discussed here are ones that I followed myself during my 32 years of trying workers’ compensation cases. Looking back, it’s funny to see how the last 11 years would change how I would try cases now.