Credibility and the Risks of Trial

By August 5, 2016Articles

At Kubitz & Company we try to take a reasoned approach to litigation. Civil litigation is a risk balancing exercise, both for the plaintiff and for the defendant.  For every offer, we ask, “What are the chances of doing better or worse than this offer if this matter goes to trial?” It is important at regular intervals during the litigation process to assess the reasonable range of values of any case.

The risks of trial were recently emphasized by Justice P.R. Jeffrey in Kitching vs Devlin, 2016 ABQB 212.  This was a legal malpractice matter where Mr. Kitching had settled his accident injury case at a judicial mediation, but then changed his mind, and thought that his personal injury case was worth more than he had settled it for, so he sued his lawyer, Mr. Devlin.  Mr. Kitching gave Justice Jeffrey’s numerous reasons to doubt his credibility during his testimony, leading Justice Jeffrey to conclude that Mr. Kitching’s overall testimony was “less trustworthy”. Accordingly, Justice Jeffrey accorded less weight to Mr. Kitching’s evidence (paragraphs 332–333).

Of importance, Justice Jeffrey commented (paragraph 247):

I do not view Mr. Rodin’s comments as Mr. Kitching does. Mr. Rodin did not advance a theory of judicial discrimination.  Rather, his testimony emphasized the many legal hurdles that personal injury plaintiffs face in discharging their onus of proof. In respect to each such hurdle a claimant will face a healthy judicial skepticism, as will a defendant. Evidentiary problems with witness credibility, standard of care, causation, or damages are common and may arise unexpectedly at trial. Trial judges will reduce the damages award, if not dismiss the action entirely, if on balance the plaintiff’s case is not proven in some key aspect.  In this case, the defence had an IME (Independent Medical Examination) that disputed Mr. Kitching’s diagnosis of CRPS (Chronic Regional Pain Syndrome).  Mr. Kitching’s own treating physicians did not agree as to what was causing his pain symptoms or whether he continued to suffer from CRPS.  As mentioned earlier, it was reasonable for Mr. Devlin to conclude that Mr. Kitching might not present as a credible witness at trial.  When the defence learned of Dr. Clarke’s IME, which would have been increasingly likely over time, then Mr. Kitching’s case would have been in even greater danger.  Accordingly, I find that these problems with Mr. Kitching’s case created a significant risk that a trial judge would reduce a damages award.  This potential deduction does not result from systemic judicial discrimination; it results from uncertainties and shortcomings in Mr. Kitching’s evidence. (Emphasis ours).

A recent example of a trial going horribly wrong for a plaintiff whose evidence was not believed is the decision of Blicharz vs Livingstone, 2014 ABQB 373.  In that case, Justice Langston found that the plaintiff’s evidence was marked by exaggeration, deception, and manipulation, and that she was an untrustworthy witness (paragraph 135).  Prior to the trial, Ms. Blicharz had been offered $500,000.00 to settle her accident injury lawsuit, but she rejected that offer.  Ms. Blicharz went to trial on her own after going through 3 lawyers. After trial, Justice Langston awarded her $11,500.00.  Justice Langston then awarded costs against Ms. Blicharz to be paid to the defendants in the amount of $325,000.00.  Ms. Blicharz’ appeal was unsuccessful, and the appeal costs were also awarded against her.

The “bottom line” is that the credibility of a personal injury plaintiff, especially in a chronic pain case, is absolutely crucial.

One practical maxim is “If the judge likes your client and believes your client, then the judge will try to find some way to get your client money”. We cannot do much about whether or not a client is likeable, but whether or not a client is believable depends on how honest and truthful the client is at all times.

At Kubitz & Company we try to build your case as strong as we can based on the evidence that you give us, supplemented by the strength of the evidence of your treating health professionals, family members, friends and co-workers. We try to give you guidance on what a reasonable range of values would be if the matter proceeds to trial, and if the defendants make an offer within that range of values, then we encourage you to accept an offer within that range of values.  If the defendant’s offer is not in a reasonable range of values, we will recommend that you proceed with the lawsuit.  The message that we want to send to the defendant is that, “We are being reasonable, but if you are not, then we will move this matter towards trial and do our best to achieve a judgment that exceeds your offer.”

At the end of the day, both sides to a lawsuit need to continually evaluate their respective risks of being more or less successful at trial, and base their offers and any settlement on the overall risk assessment.

Call us today if you want to discuss your accident injury or wrongful death case.

Article by Walter W. Kubitz Q.C., a personal injury lawyer in Calgary, Alberta.