BIAS

You know the old expression “If I had a nickle for every time . . .,” so on and so forth. Well I wish I had a nickle for every time in the past several decades that I have told clients, and actually other lawyers, that bias is always relevant. And just why do I say that? We are often confronted with witness statements or anticipated testimony of a person who has a bias. Fortunately, the rule is that the testimony of a witness or his/her statement isn’t to be accepted automatically. The system has safeguards for having statements/testimony evaluated and put into its proper perspective. Certainly in cross-examination at a deposition or a trial, there is wide latitude. Your attorney can ask a lot of questions to develop and uncover bias.

I have also told you that it is the unusual case that is tried. I have also added that most cases, especially serious ones, are evaluated as if they will be tried. The trial is a contingency that is always factored in the discussions. In the serious personal injury cases, there are depositions, so witnesses will be testifying at least in a deposition. Yes, it is testimony so it is under oath and subject to cross-examination. Based on that testimony, there is almost certainly frank discussion between the plaintiff’s lawyer, that would be me, and the insurance company’s lawyers or the defendant’s lawyers about the veracity and reliability of the testimony.

I was recently working on a case, a very serious two car accident where the other driver may indeed bear some liability in addition the passenger’s driver. This is very important in Massachusetts because we have a joint tortfeasor statute where if you are even 1% negligent, you are jointly and severally liable for the damages. That is a fancy way of saying even if you are only 1% negligent, you can be on the hook for at least half of the damages and possibly more.

The police report from this very bad accident redacted the names of the witnesses, which I now have. The report quoted what the witnesses said and it basically exonerates, or frees from liability, the driver of one of vehicles. Well, as a result of my investigator’s work, I learned that the names of the witnesses who were redacted from the police report. It turns out that they were passengers in the car of this offending vehicle. The depositions have not been taken, but you can well imagine that I will extensively cross examine these witnesses to uncover their connection to their driver. At first blush, it seems that there is a connection, given that they were in the driver’s car. The hope is that I can establish that their connection has caused a willingness to shade their testimony because they have a bias in favor of their friend or whomever, the driver.

There is reason for why clients who are faced with statements that may be detrimental to their case should not despair. At that relatively early point in time, when a statement is produced, we don’t really know the reliability of the information that an insurance company will so willingly use. The point is it may not be good information. The key thing to keep in mind is that you can’t have your lawyer sit back and see your case disintegrate because of a failure to get to the bottom of a hostile statement. Your serious case deserves more.

Ours is an advocacy system. While there are ethical constraints in having your case presented, you and your lawyer can’t rely on the willingness of the other side to divulge potentially harmful facts. In this day and age, the gathering of information is not as expensive or as laborious as it used to be. Therefore, if you are faced with hostile facts, try to see to it that your lawyer gets at the underlying basis of them. You may be pleasantly surprised. You may learn that they can’t stand up to scrutiny and bias may be the reason.