Intangibles of Case Evaluation, Part Three: Witness Credibility

People do not always tell the truth. Sometimes they do not know the truth and are fooled into thinking differently. Sometimes they are afraid of being wrong and guess, when they don’t know the truth. Sometimes they simply lie. And sometimes people tell the truth but are not very convincing—we’ve seen several obvious examples of this in pop culture recently. Whether a witness is believed by the jury or judge is crucial to any case and how you evaluate that case.

This month’s column is the last in a three-part series on the intangible factors of case evaluation. Witness testimony is vital to any case. Unlike exhibits and documents, people can be unpredictable, unreliable, and inconsistent. This is why we take recorded statements and depositions—to solidify and add predictability to a witness’s testimony at trial. However, people still change or shade their story over time. When evaluating a claim, here are the things you need to look at to determine the impact of a witness and their credibility.

Expertise and Experience. Some people know the subject of their testimony because of extensive experience. Training and education also lend validity to their testimony. Of course, we know this is true of witnesses designated as experts under the rules of evidence, but it is also true of lay witnesses. Juries believe testimony when they think the witness knows the subject they are talking about. For example, a plaintiff in a product liability case may not be an expert under the Daubert standard. But, if they have used a product hundreds of times and it performed as it was designed to, a jury is less likely to believe a product misuse argument. That is because the plaintiff has expertise or experience that lends credibility to their testimony. The familiarity and experience of the witness with the subject of their testimony are key factors in determining the credibility and believability of their testimony.

Consistency. Is the testimony of the witness consistent? Is it consistent with that of other witnesses? Different eyewitness accounts of the same event often vary in detail, but the general story is the same as that of other witnesses. Is their testimony consistent with their own previous statements? If a witness adds details that they previously did not recall, that does not bode well for credibility. The best aid to consistent testimony is practice and preparation. Mock depositions are very simple to conduct and provide a good indication of whether a witness will change their story when the pressure is on.

Detail. Witnesses who recall a certain level of detail in their testimony appear believable. Vague conclusory statements are sometimes worse than no testimony at all. When conducting initial interviews or taking statements, you should test the witness’ recollection of details, even when the particular details don’t make the establishment of any certain facts more likely. You will know how reliable the testimony is when the facts are fleshed out. Of course, sometimes witnesses convince themselves of a conclusion that they can’t back up with details or even contradict their own conclusion. This is rare but can be the kind of thing that makes great courtroom television.

Demeanor. There is always an intangible element to witness believability. Jurors and judges alike sometimes will just have a “feeling” about someone. It may be how the witness dresses, the natural cadence of their speech, or the similarity in background to the judge or jurors. Some people simply appear more credible than others. It doesn’t mean they speak the truth or that their testimony is particularly reliable. As a claims professional, that is why it is important to set eyes on a witness whenever possible. (Video conferencing is a great asset in this regard.) Recorded statements are great for securing facts, but they do little to inform us about whether a person appears credible. Small-scale mock juries and focus groups can be good objective indicators of believability. In addition, we mentioned mock depositions above. Video technology on smartphones and tablets provides an easy way to conduct and review a practice deposition. As defense counsel, it is also a good tool to convey the believability of a witness to the claim handler.

Neutrality. Is the witness unbiased, or do they have a stake in the outcome? Financial incentives can lessen the credibility of a witness. Plaintiffs in personal injury cases are always susceptible to attack on this front; if they win, they get paid, so they are more likely to shade their story in their own favor. But it can work against defendants and non-party witnesses too. Defendants, small businesses in particular, are susceptible to financial incentives lessening the impact of their testimony. There are also incentives other than financial: The need to maintain the reputation of a product, business relationships, protection of trade secrets and other intellectual property, and perceived employment repercussions often can affect neutrality. It is important to discover and expose any incentives that a witness may have and argue those incentives to your favor.

In the end, there is no such thing as the perfect witness. Most jurors want to believe the testimony from the stand, unless there is a credibility issue. Those issues arise when witnesses have an insincere demeanor, are inconsistent, fail to add sufficient detail, or when they are argumentative (or at least fail to concede obvious points). Knowing where witness credibility rises and falls can help you improve the accuracy of your case evaluations, set proper reserves, and better predict outcomes.