Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
At a recent witness preparation meeting, the doctor-defendant sat struggling to recall the details of an informed consent discussion she had with the plaintiff. “I think I told him…” she began, before finishing the statement with, “…Do you know how many patients I see? I really cannot remember.” The medical record reflected that there was indeed a discussion on risks, but the notes were not specific enough to answer the key question we expected from plaintiff’s counsel: Did the discussion cover the specific complication that actually occurred? Sensing that the doctor was about to resign herself to an, “I don’t know,” I asked, “Well, in cases like this, what do you usually talk about with patients?” And, without much effort, she reenacted that discussion and included the key warning. “Okay then,” I said, “Why don’t you say that?” She explained that, because it wasn’t in the record and because she didn’t have a specific recollection of this discussion, it did not seem like that would be credible. “It’s probably more credible,” I responded, “because it is what you say in every case, and not just in this case.”
The solution when records and specific recollection fail is to rely on pattern and practice — not the pattern and practice evidence that can be admissible as evidence of bad faith or pretext in, for example, an employment suit, but rather the pattern and practice that serves as credible evidence of our habits. Relying on these standard practices isn’t just good advice for doctors, but can also serve as a reliable basis of testimony in other contexts: in fleshing out a product development story, or in describing the norms of your communication about a contract, for example. In each case, the witness who does not recall a specific interaction and cannot point to specific documentation about that interaction is not out of ammunition. Instead, the witness can answer by saying, “My standard practice in situations like this is to…” And rather than being a consolation prize, next-best sort of answer, that use of what is typical can turn out to be highly credible in practice. In this post, I’ll share my thoughts on why that is the case, and how pattern and practice can be put to the best use.
How Do You Know What You Know?
It is part of my standard advice in witness preparation meetings that there are three ways that we know what we know. Let’s say someone asked me what I had for breakfast the Tuesday before last. I might remember because something unique happened that day: My dog escaped from the yard, and I recall having to set aside my grapefruit to go bring her back in. So, we could recall because there is an independent recollection. Or, perhaps I was traveling that day and I have a receipt that identifies it as “grapefruit.” That’s the second way: documentation. Or, maybe I always have a grapefruit for breakfast, so I know without specifically recalling or without looking anything up what I ate on that particular day. That is pattern and practice, the third way of knowing.
I tell my witnesses to just think of this as a filing cabinet with three different drawers. Each one is fine to use in testimony as long as you make clear which drawer you are drawing from and you don’t mix up the content: Don’t say you independently recall something if you’re really just relying on your notes or your pattern and practice. But do treat those other sources of knowledge as potentially just as good as independent recollection — or maybe even better.
Why Might Pattern and Practice Testimony Be the Most Credible?
Legally, of course, the case focuses only on the plaintiff. Yet there are some common sense reasons why information that extends beyond the individual plaintiff is often going to be more meaningful and more memorable. The modern Reptile approach to persuasion used by plaintiffs’ attorneys, for example, is dedicated to the idea of framing the case so it is a statement about the whole community and not just the individual plaintiff. It is also to be expected that jurors will focus more on what one always or typically does, rather than on what one does in one specific instance, in forming an overall assessment of credibility and merit.
The advantage of pattern and practice testimony is that it extends beyond the individual plaintiff and speaks to what is true in most or all cases. It isn’t based on a single-claimed memory, or on a document that might not be perfect or complete, but is instead based on knowledge of what is true all the time.
How to Make the Most of Pattern and Practice?
As with all aspects of witness testimony, the first piece of advice is to make it honest. Practically speaking, if you say you always do something and you don’t, then the impeachment will be both easy and devastating. In some cases, the pattern and practice is what is generally or typically true, without being always and absolutely true. In those cases, I believe it is still useful to rely on your pattern and practice, using the “preponderance” standard as a rough guide.
In these cases, ideally, there will be some explanation for when that pattern and practice does not apply. In other words, it isn’t random: The circumstances when the doctor does not conduct an informed consent discussion, for example, is limited to just those circumstances where the patient either has already consented or cannot consent (because he or she is unconscious), and those circumstances were not present in this case.
Ultimately, the witness’s description of pattern and practice is something that should be worked out during witness preparation: It should be as honest, as complete, and as detailed as possible.
Other Posts on Witness Recollection:
- Don’t Mistake the Witness for a Bucket of Facts
- Fight False Memory (in Your Witness Prep)
- Treat Memory as Reconstruction
Image Credit: Photograph taken by the author using his daughter’s Scrabble board