GENERAL OUTLINE FOR CLAIMANT’S TESTIMONY

Every Judge has specific rules, procedures and ‘idiosyncrasies’. This is a GENERAL outline of what to expect, and how to conduct yourself during testimony.

A Workers’ Compensation Judge is “All Powerful” – meaning they not only control their own courtroom, but the Judge will decide YOUR future. Judges are still only human, and can often decide a given case based on feelings (good or bad) about a given case – or a given witness.

• If a Judge Likes/Believes the injured worker – there is a significant likelihood that claimant will win;
• If a Judge does NOT like, or does NOT believe the claimant – it is likely that claimant will lose

• Regardless of the medical evidence 

There are certainly cases where a legal issue or ‘technicality’ will determine the outcome – but the overwhelming majority of cases are determined based on whether the Judge likes/believes YOU.

In every case, one side will lose – and that party NEVER thinks they should have lost. However, an appeal is strictly limited to determining whether the Judge acted within the scope of their “Power”, or authority. An Appeal Court is not permitted to re-evaluate the evidence and draw their own conclusion. If the Judge chooses to reject your testimony, the Appeal Court can NOT re-consider that finding (with very rare exceptions).

Therefore – whatever evidence/testimony the Judge believes and rejects is generally FINAL.

YOUR testimony before the Judge is the single most important piece of the case.

1. Following the Judge’s Rules is extremely important. If the Judge starts to talk, EVERYONE else shuts up.
2. IMAGE does matter. Dress respectful for a court appearance. It shows the Judge you are taking this matter seriously, and that you respect THEM.
3. Address the Judge as ‘Your Honor’, “Sir or Ma’am”.
4. Be polite and respectful to the opposing attorney – even when they are trying to get under your skin. The other lawyer is not ‘on trial” – you are!
5. Know YOUR case. No one knows what happened to you better than you.

If you do not know dates, names or facts – how can you expect either lawyer or the Judge to know these facts.

If you do not spend the time to think about the issues – the Judge will assume it must not be that important to you, or the injury was not “that” severe.

BEFORE THE HEARING DATE:

• Think about the day of the incident:
  • what time did it happen;
  • how did it happen;
  • did anyone else see it;
  • did you report it;
  • did you get treatment.
• Know the names of every doctor, hospital and Urgent Care you went to.

Again – if you do not know where you received treatment – how can the lawyer get the records?

If you do not know where you received treatment, it must not have been a very serious injury (as far as the Judge will interpret it).

• Know EVERY area of pain, discomfort and your physical limitations.

If you do not say you have pain, numbness or tingling, are unable to fully move a part of your body etc., the Judge cannot possibly make that body part an element of your claim.

If the Judge is not informed of what you can and cannot do, the Judge cannot possibly determine that your ability to work is affected.

DURING THE HEARING:

All your lawyer can do is ask the questions. It is up to you to answer them – truthfully, fully and accurately.

The two most important – ESSENTIAL – rules I tell every client:

1. TELL THE TRUTH.
2. KEEP ANSWERS SHORT AND SIMPLE.

 

1. Tell the Truth

This includes the obvious – do not lie; but also includes do NOT guess and do NOT exaggerate.

The unwritten rule in every type of court (workers comp., criminal, domestic relations etc) is that if you lie about one thing, you will lie about anything – so nothing can be believed.

In short – one “lie”, and you lose. PERIOD.

A ‘good’ lawyer can turn a ‘bad answer’ into gold. “My client is SO HONEST, they even told Your Honor the truth about damaging information . . .”

In today’s world of smart-phones and social media, almost everything is recorded or filmed somewhere. Nothing is truly “private” (no matter what the web site claims, or how you set up your account).

You have no idea whether someone else has “tagged” you in their social media account or caught the incident on video.

DO NOT GUESS. One wrong guess is just as bad as a lie.

A wrong guess will be argued as your intent to mislead the judge.

A wrong guess in a type-written transcript does not look like a guess.

It looks like a question and a wrong answer – like a lie.

It is preferred that you say you do not know or do not remember, rather than have one wrong guess.

DO NOT EXAGGERATE. Same result – the opposing lawyer will argue that everything you say is not trustworthy, because you are trying to make your injury “seem’ more severe than it is.

Example: Pain Scales. Few doctors actually explain this to the patient, and it can be interpreted several different ways.

• Is a “10” the worst pain you ever had; or is a “10” the worst pain ever imaginable?
• Whatever pain you have right now – if you can imagine something worse – then your pain is NOT a “10”.
• Here is an illustration:
• If I slice all over your body with razor blades – would that hurt more than your current pain?
  • If I then dump gasoline on those open, bleeding wounds – does it hurt more than the cuts?
  • If I next set you on fire – is that worse?
  • If I then start pounding you with a hammer while you are still bleeding and on fire – worse?
• I can always add something worse. A “10” is such severe pain that you pass-out, or die.
• Your pain is NOT (likely) a “10”

2. KEEP ANSWERS SHORT AND SIMPLE.
   • Answer questions with a simple yes or no. If the lawyer wants more – we will ask.
   • You might think your long explanation is helping. IT DOES NOT HELP.
   • Lawyers are trained and paid to twist the facts to their advantage.
   • The more you say, the more words a good lawyer can twist and distort.

3. Remember the court reporter.
   • A court reporter is typing every word said.
   • Mumbling to yourself while thinking – that is being typed.
   • Two people talking at once may result in half a question or answer, or omission of essential words.
   • Nodding and shaking your head, or Ah-huh (yes); Un-uh (no) are not actually words.

4. Avoid slang and common ‘expressions’.
   • Even at a deposition – you are IN COURT.
   • Use full words and sentences, do not use slang or ‘street talk’.
   • I recently had a client try to correct an answer by saying, “wait a second, I’m lying”.
   • He did not mean he was literally lying, it was an expression to say his answer was incorrect or incomplete.
   • In the written transcript – it will simply say “I’m lying”.

SAMPLE OUTLINE FOR TESTIMONY OF CLAIMANT:

Background facts:

• your name & address,
• employer, type of business
• Job Title, job duties and salary

The Incident:

• The date and time
• What you were doing before incident
• How did injury occur
• Were there witnesses/cameras
• What part of body hurt immediately
• What supervisor did you tell
• Was an incident report prepared
• Did you finish your shift

Initial Treatment:

• Did get treatment immediately; or later the same day
• If not – why not
• Where was the initial treatment
• Why/how choose that doctor/facility
• Did employer give you a choice of doctors
• Did employer advise you – or give documents describing your rights, duties and options

Work after incident:

• Did you return to work your next scheduled shift
• Why/why not
• How feel
• Able to complete that next day/shift
• How feel at end of day
• Did there come a date you stopped working
• When
• Why

Follow-up Treatment:

• After that first date of treatment, where else have you gotten treatment
• Name/address of all treatment providers
• Is the treatment helping
• [note – even brief, temporary or slight reduction of pain IS helping.
• If you state the treatment is not helping – the Judge might issue a decision denying you ANY treatment]

Current condition:

• Do you feel able to work your regular job now
• What duties can you not do
• Do you think you can work light duty now
• Why/why not
• Have any jobs been offered to you that you feel you might be able to at least try
• If a job offered – would you try

Other income/benefits:

• Since the injury, have you worked anywhere
• Have you received any salary continuation from employer
• Have you received Leave time, sick time or vacation pay
• Have you received any other benefits
  • Unemployment compensation
  • Short or Long Term disability benefits
  • Pension
  • Social Security/Medicare
  • Medicaid
• Have you paid for any medical bills or treatment yourself
  • (provide receipts)

Miscellaneous issues:

The lawyer will also have you authenticate your fee agreement and one or more Affidavits necessary for the specific judge/issues involved.

The above is merely a General Outline. Every case is unique. There are facts and issues that may be specific to your case not covered above.

Your lawyer will discuss this outline, and your case/issues before the Hearing.