A Case Study in How Judges Determine Witness Credibility

When a judge hears from multiple witnesses, he or she must make a decision on how much weight to give to what each witness says. Bankruptcy judges frequently make their credibility decisions a part of their opinions. This is both helpful to the parties and increases the likelihood that fact findings will not be found to be clearly erroneous on appeal.

Judge H. Christopher Mott's opinion in Adv. No. 18-1091, Kansas City Southern Railway v. Chavez, which can be found here is a good illustration on how judges assess credibility. For more background on the case, you can read my prior post here.  During the trial, Judge Mott heard testimony from thirteen witnesses, some of whom testified live and some of whom testified by deposition.  I have listed the witnesses below and have quoted Judge Mott's credibility findings.

The Witnesses and What The Judge Found

Mr. Leonard Wagner, was associate general counsel of Kansas City Southern Railway
Company.

Mr. Leonard Wagner, associate general counsel of Kansas City Southern Railway Company, provided brief testimony at trial in person. The Court finds that Mr. Wagner is
a credible witness.

Merritt Clements was an attorney representing Kansas City Southern Railway Company.

Clements was also a fact witness that testified in person at trial. As a result, Clements also acted in dual roles—as an attorney advocate for KCSR and a fact witness in this adversary proceeding. Clements’ testimony included background information regarding the litigation with the Chavez Family, as well as his role in negotiating the 2010 settlement for KCSR with Dean. Clements was candid, honest, and competent as a witness. Given his dual role as both advocate and witness in a bitter, lengthy dispute, the
Court gives his non-background testimony limited weight to the extent it was not supported by contemporaneous records.

Stephen T. Dennis was another attorney representing Kansas City Southern Railway.

Dennis provided brief testimony only by deposition, on a very tangential matter. The Court finds that the testimony of Dennis was credible, although the subject matter of his testimony had remote relevance to the disputes in this adversary proceeding.

Luz Chavez was the matriarch of the Chavez family. She was the husband and mother of the two decedents.

 Luz was a key witness in this adversary proceeding. She testified at trial in person and by deposition. Luz suffers from legitimate memory problems and appears to have some cognitive difficulties. Some of her memory lapses are attributable to the stress of tragically losing a husband and son and the time that has passed since many critical events between 2007 and 2011. Portions of sworn statements signed and filed by Luz in State Court were shown to be incorrect (at best) and false (at worst) during the trial of this adversary proceeding. Her testimony was sometimes inconsistent, riddled with responses like “I don’t remember” and “I don’t recall,” and when pressed, she was easily
confused. As a result, the Court gives limited weight to much of her testimony.

Darlene Chavez and Allen Chavez were adult children of Luz Chavez.

Darlene was an important witness in this adversary proceeding. She testified at trial in person and by deposition. Darlene appeared both honest and competent. The Court finds Darlene’s testimony to be credible on matters within her personal knowledge.

Allen was also an important witness in this adversary proceeding. He testified at trial in person and by deposition. Allen appeared candid and forthright to the Court. The Court finds Allen’s testimony to be credible on matters within his personal knowledge.

Juanita "Lynn" Watson was a partner in Rosenthal & Watson, the firm which represented the Chavez family in the underlying state court suit.

Watson was a key non-party witness in this adversary proceeding. She testified at trial in person and by deposition. At trial, Watson appeared competent and straightforward to the Court. However, her testimony appeared intentionally vague and non-specific in certain critical areas, such as obtaining the approval of all adult Chavez Family members to the 2010 settlement with KCSR. To the extent that Watson provided specific testimony, the Court finds much of her testimony to be credible. On the other hand, Watson’s generalized and vague testimony about the approval of the entire Chavez Family to the settlement and the surrounding circumstances is given limited weight by the Court.

Marc Rosenthal was the other partner in Rosenthal & Watson. He gave his testimony by deposition from prison.

 Rosenthal testified at trial only by deposition, taken at a federal prison where he is presently incarcerated. In 2013, Rosenthal was convicted for a criminal scheme that spanned four years. His crimes included conspiring with witnesses to provide false testimony, extortion, fabrication of evidence, bribery of a state court judge, and other acts
of fraud by Rosenthal while an attorney with R&W. The conviction included actions taken by Rosenthal in several wrongful death suits filed against railroads, but do not appear to involve the suit filed for the Chavez Family against KCSR. See U.S. v. Rosenthal, 805 F.3d 523, 526-28 (5th Cir. 2015); (Ex. P-45). The Court gives Rosenthal’s testimony little weight.

James Christopher Dean was an attorney who Rosenthal & Watson hired to try the underlying state court case.

Dean was an important non-party witness. As Dean testified only by deposition, the Court was unable to assess his demeanor. Dean’s independent recollection of events appeared limited, and he had no direct contact with the Chavez Family regarding the 2010 settlement. In his testimony, Dean generally seemed cooperative and honest. The Court finds Dean’s testimony generally to be credible on matters within his personal recollection and knowledge.

Mark Alvarado is an attorney who used to practice with Rosenthal & Watson and now represents the Chavez family.

Alvarado was a fact witness and testified in person at trial. Alvarado has continued to wear multiple hats. At trial in this adversary proceeding, Alvarado was both the attorney advocate for the Chavez Family and a fact witness. Significant personal animosity exists between Alvarado (as counsel for the Chavez Family) and Merritt Clements (longtime counsel for KCSR in the disputes for the Chavez Family). Alvarado’s testimony to the Court covered primarily background information regarding the lengthy litigation between the Chavez Family and KCSR. Although Alvarado appeared (for the most part) straightforward, given his dual role as advocate and witness in a bitter, lengthy dispute, the Court gives his non-background testimony only limited weight.

Adriana Maddox and Edward Maddox served as guardians ad litem for Joel Chavez, the minor son of Luz Chavez.

 Adriana played a peripheral role in this controversy. She testified at trial only by deposition. She only had a partial recollection of events. In her testimony, Adriana seemed straightforward and honest. The Court finds Adriana’s testimony to be credible on matters within her personal recollection.

Like his spouse, Edward had a peripheral role in this controversy. He testified at trial only by deposition. Edward had a limited recollection of events. In his testimony,Edward seemed candid. The Court finds Edward’s testimony to be credible on matters within his personal recollection.

Alphonso "Pancho" Gonzales was a private investigator hired by Rosenthal & Watson.

Gonzales had a very limited role in this controversy. He testified at trial only by deposition. Gonzales appeared to have a good recollection of events and was candid. The Court finds the testimony of Gonzales to be credible on the limited matters that were the subject of his testimony.

Lessons to be Learned

What to make of all these credibility decisions? First, it is interesting to note that nine out of thirteen witnesses who testified were attorneys.  This has a certain logic given that this was a trial about whether a binding settlement agreement had been reached in a state court lawsuit.

There are some patterns. Witnesses who are found to be credible are described with words like candid, honest, and forthright. Candid and forthright are words that describe a witness who answers questions directly without beating around the bush.  They contrast with the generalized and vague testimony given by Juanita Watson and the inconsistent and confused testimony given by Luz Chavez.

Competent is another word used to describe credible witnesses. It contrasts with the cognitive difficulties observed with Luz Chavez's testimony. However, it is also contrasted with the testimony of the guardians ad litem who were honest but had limited memory.

It perhaps goes without saying but being a convicted felon who tampered with witnesses is not conducive to credibility.

Bias and emotion also affect credibility. Merritt and Alvarado were both lawyers who represented parties and testified as fact witnesses. Despite having no problem with their honest, the court gave them little credibility beyond background information.  

The court also used the phrase "within his/her personal recollection" several times. This qualifier states the obvious qualifier that witnesses only know what they know. While unobjected to hearsay does constitute evidence, it is not as strong as something the witness has personal knowledge of.

Finally, there are major witnesses and minor witnesses. There were several witnesses like Stephen Dennis and Pancho Alvarado who were honest but whose testimony was just not that important.

My final point is that lack of credibility does not mean that the witness's testimony cannot have a substantial impact. One of the more important scenes in the trial consisted of a phone call between Juanita Watson and Luz Chapa. These were two witnesses who both had credibility problems. Watson was vague and generalized about the family's approval of the settlement while Chapa had cognitive difficulties and was confused. Chapa's credibility problems actually appear to have helped the court conclude that she did not understand the settlement sufficiently to give informed consent.

From this survey, we can develop the following rules for witnesses:

Answer the question directly.
Only answer the question being asked.
Be cooperative. If asked about page 3 of Exhibit 2 don't repeatedly go to page 2 of Exhibit 3 or find other excuses to evade the question.
Admit what you do not know.
Do not testify about things you do not know.
Don't contradict yourself.
Do not have convenient memory, that is, memory which is clear and direct on points helpful to you and vague and fuzzy on points which hurt you.