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At the outset, this is a blog about workers' compensation. Periodically, I get feedback from the mis- (or un-) informed asking "what does this (whatever it is) have to do with workers' compensation?" While it may be that I take things for granted, I have striven in recent years to be more direct with the reader in this regard. Unfortunately, the world of workers' compensation too often includes litigation. And in those trials and hearings, there is almost always testimony from the injured worker, the employer, and various physicians. Notably, these are all either personally or professionally interested in the case, the issue, and the trial.
However, there are also a multitude of hearings in which there is/are a witness(es) that have no real interest in the case. She/he/they have been subpoenaed and brought to the hearing because of someone else's interest(s). Over decades of trying and hearing cases, I am familiar with their frustration, disappointment, and even anger at being reluctantly present. Much like being summoned to jury duty, such a subpoena can be unwelcome, feel like an intrusion or imposition, and lead to discomfort or worse. Without a doubt, the witness and the juror are indispensable to the justice system. Too often, the subpoenaed witness is unclear on her/his role, on the expectations of counsel, on the process and procedure(s), and on the duration of the commitment. There are additional challenges with being recompensed for one's time as well.
I was reminded of that as the news feed came up with coverage recently of a fact witness in a rather testy defamation action that is being played out in a Fairfax County, Virginia courtroom. In some ways, that whole legal affair perhaps started in the Washington Post, where one of the parties wrote an opinion piece on domestic relationships. Of course, it is also possible to discern from the testimony reported that the two parties have had a long-contentious relationship the erosion of which merely culminated in that newspaper. As it has played out in the press, it remains at best unclear where and when the parties relationship troubles began. The other member of that relationship filed a defamation suit regarding the Post article and there have since been allegations galore. The case has been intriguing to monitor.
It is not uncommon for allegations in claims and lawsuits to be viewed differently by the interested parties. Each has a distinct interest, there is disagreement, and hence a trial. Therefore, an independent witness that can corroborate or contradict either party may be of tremendous help to the judge or jury in making credibility decisions (deciding which party's story to believe). And, there are apparently some disagreement and credibility issues in this trial.
The story that inspired this post, however, is more specifically about an independent witness who was the doorman (or more aptly, perhaps, a "portal person") at a residence in which the (formerly) happy couple resided. The testimony largely focused on the portal person's investigation of a possible intruder, which he ultimately concluded was merely a dog. However, the portal person also noted his frustration with the case, while providing his deposition testimony while driving and vaping.
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
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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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