Friday, June 11, 2010

How Do Judges Determine Credibility of Witnesses?

One difference between Bankruptcy Court and other courts is that the facts are frequently not in dispute and the trial revolves around the meaning of the facts. Other times, the witnesses together present different pieces of a puzzle without directly contradicting each other. However, every once in a while, there is a trial where the witness testimony is so irreconcilable that someone has to be lying. In those rare cases, the Court has to determine who is credible and who is not. In the recent case of Wallace v. Perry, Adv. No. 08-3299 (Bankr. S.D. Tex. 2/3/10), Judge Jeff Bohm had to weigh the credibility of some 26 witnesses. He judged the witnesses in terms of both credibility and weight. So what can we learn from the Judge’s examination? (This is the second in a series of posts about Judge Bohm’s remarkable 118 page opinion in this case.).

Consistency Counts

In this case, the Court found that the defendant was not credible. The Judge made extensive findings as to his lack of credibility. Among other things, the Court stated:

After this initial attempt to appear credible, however, Perry frequently had difficulty telling the truth, the whole truth and nothing but the truth. Perry’s lack of credibility was obvious throughout his testimony. He often answered “I don’t know” and “I don’t remember” when asked questions by opposing counsel. Moreover, his testimony changed as need dictated. His answers were highly contradictory throughout the course of questioning. Perry’s lack of credibility spanned nearly every topic that counsel raised.
Opinion, p. 33. In case there was any question, the judge followed up with six pages of examples.

Obviously, it’s a problem when the judge finds that the witness “had difficulty telling the truth, the whole truth, and nothing but the truth.” In this case, the debtor lost credibility by both contradicting his own testimony and by answering his own counsel’s questions directly, but not knowing anything when questioned by opposing counsel. Frequently, I will advise clients to answer yes, no or I don’t know whenever possible in responding to opposing counsel. This is helpful in focusing the client on answering the question and only the question. However, this advice must be balanced with instructions to always answer questions directly and not to develop a convenient memory.

In contrast, the Court found the following witness to be credible:

While Wallace was slightly guarded in some of his answers as the trial progressed, he did not evade questions posed to him; rather, he responded clearly. Indeed, even when he knew that answers to certain questions posed to him were not favorable to his position, Wallace answered honestly. This Court gives significant weight to Wallace’s testimony and considers him to be a credible witness.
Opinion, p. 45.

Everyone Has a Bias; Deal With It

The Court made extensive findings as to the bias of various witnesses. However, some witnesses lost credibility due to bias, while others held up despite bias. Here are some examples.

Overcome by Bias

While Hoffman claimed that she does not like Perry, she still refused to bite the hand that fed her. . . . Though she attempted to be credible, her priority was protecting her former employer, Perry. Overall, Hoffman’s testimony lacked credibility and the Court gives little weight to her testimony.
Opinion, p. 39.
Frishberg attempted to answer questions truthfully, but his answers were colored by his bias. Frishberg was very angry at Wallace, Bajjali and Perry for the failure of the Partnership, and this bias was reflected in many of his responses. Given these circumstances, the Court gives some, but not significant, weight to his testimony.

Opinion, p. 43.

Overcoming Bias

Not surprisingly, because Bob Perry is the father of Perry and no doubt loves his son, Bob Perry was hesitant to speak negatively of his son. Indeed, he quite justifiably tried to avoid admitting that his son could have lied. The Court does not view Bob Perry any less credible for this attitude. Any loving father would take the same approach. Overall, Bob Perry’s testimony is very credible, and the Court gives significant weight to his testimony.
Opinion, p. 45.

Despite this potential for bias, the Court found Prestage to be honest. He answered questions directly and in a forthright manner.
Opinion, p. 40.

While he could have been biased due to his personal connection with Wallace and Wallace’s family, he did not show any bias whatsoever and made every attempt to answer all questions honestly and to the best of his ability.
Opinion, p. 44.

While Bejjali had reason to be biased against Perry, he demonstrated through his testimony that he was not vindictive.
Opinion, p. 45.

“I Think I Don’t Remember”

Memory is a funny thing. In this case, some witnesses had convenient memory:

He often answered “I don’t know and “I don’t remember” when asked questions by opposing counsel.
Opinion, p. 33.

He was unable to remember facts and occurrences that he deemed to be unfavorable to Perry’s defense. This Court gives little weight to Tielke’s testimony due to both his bias and his unwillingness to be forthright.
Opinion, p. 40.

Another witness gained credibility by admitting what he did not know:

He honestly admitted when he could not remember specific details of conversations and occurrences.
Opinion, p. 39.

Finally, a witness just couldn’t remember:

The Court finds Jacob a credible witness, but cannot give significant weight to his testimony because his recollection was poor.
Opinion, p.42.

Thus, there is an important distinction between convenient memory, poor memory and nuanced memory.

Attitude: Open or Defensive?

Attitude is important. One reason that factual findings will not be overturned unless they are clearly erroneous is that the judge gets to observe the witness and his demeanor. Here are a few excerpts:

Hoffman was defensive when questioned regarding a number of topics.

Opinion, p. 39.

While Tisch appeared honest in his testimony, he was very tight lipped and unwilling to freely disclose information.
Opinion. P. 42.

Although Perry attacked Keller's character and raised the possibility of bias in Keller's testimony, Keller remained neutral during the testimony. He answered questions directly and truthfully.
Opinion, p. 44.

Summing It Up

When preparing a witness for trial, the following attributes will help their credibility:

1. Be consistent. Spend enough time with the witness so that he is prepared for the questions that will come up and won't be caught trying to improvise badly. Additionally, impress upon the witness that knowledge does not take sides. If he knows the answer to the question on direct examination, he had better know the answer on cross-examination.

2. Bias is part of human nature. However, a witness gains credibility by acknowledging their point of view. A loving father will not be expected to impeach his wayward son. Similarly, an aggrieved party will be more credible if he is not vindictive or angry.

3. Figure out what you know and what you don't know. An honest admission that some details are not remembered will be more credible than a convenient memory.

4. Finally, direct, responsive answers are best. Being overly tight-lipped or non-responsively expansive diminishes credibility.

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