In the Hillen v. Army, OSC, 87 FMSR 5678, and 35 MSPR 453 (1987) decision, when a witness presents conflicting evidence regarding a material issue, the administrative law judge usually resolves the conflict by finding one party to be more credible than the other.
This has become known as the Hillen Factors:
- Identify factual questions in dispute;
- Summarize all evidence on each;
- State which version he/she believes; and
- Explain in detail why the chosen version was more credible.
It does not matter whether you are appearing before the Merit Systems Protection Board (MSPB), the Equal Employment Opportunity Commission (EEOC) or an arbitrator. The ability to prevail is directly related to credibility as outlined above, and witness preparation is the master key to that success.
Let me try to illustrate this with a real case that occurred.
There was a woman who worked for an agency whose objectives were to ensure that companies adhered to federal workplace laws and regulations. Her assignments were preponderantly in the field.
This individual had a very prickly personality, and could easily become excitable as well as rude and obnoxious to internal as well as external customers. On one external field assignment she became loud and abusive towards a law enforcement officer.
For this misbehavior she was suspended, but the union contract at the time precluded management from consummating the discipline until she exhausted her appeal rights. In this particular instance, she chose to file an appeal that she was being discriminated against because of her gender. As we all know too well, the appeals process can be excruciatingly slow and protracted.
Now fast forward to a number of years later when she again was reviewing a company and became loud and abusive to the company president and another member of his staff. Once more she did not conduct herself in any manner close to being a professional.
This episode was made known to the agency, which took immediate action to relieve her of field assignments. She was assigned desk duty in the office while the matter was being investigated. She was again subsequently suspended, and management prevailed at arbitration on this particular incident. (The stay of execution had previously been removed from the collective bargaining agreement.)
Shortly after the arbitration, her civil rights hearing before a judge on her previous suspension was heard. The regional administrator was called to testify. Prior to her testimony there was no role play with agency counsel or human resources, and this regional director went in quite cold. The regional director, who was not the deciding official on her earlier suspension, was asked a series of questions by the opposing counsel, which she fumbled, and I understand fumbled badly.
Consequently, the agency lost, and personally I believe the agency would have had a far better chance of prevailing had this key witness been better prepared as to the questions she would hear from the Assistant U.S. Attorney as well as the opposing attorney. The grievant testified that the discrimination continued as to how she was recently relieved of field assignments and given desk duty, implying that she was being singled out because of her gender. If there was a management witness that needed coaching, this was the case.
With prior counsel and preparation the regional director should have easily been able to include in her answers that being assigned to desk duty was not punitive, the grievant suffered no loss in pay or benefits, and men had also been given desk duty while they were under investigation for misconduct, and disciplined equally for wrong doing. Additionally, there was no mention that she had again been suspended for unprofessional conduct in the field, and this suspension, which included allegations of discrimination. This grievance was not sustained in arbitration, and the fact pattern in the latter case was almost identical to her current case before the judge. All of this important information was never heard or entered into the record to counter the grievant’s testimony.
Witnesses need to be briefed. Even if the witness was Sam Waterson from “Law and Order”, and considered a shoe-in, the witness must be prepared by the advocate. Always keep in mind that this is your case, and you decide generally where the case goes.
Cross examination can be frightening for many because they do not know what will be asked, let alone how it will be asked. They often feel they are under siege, and they just earned a guest spot on a remake of LA Law. It is rare to find a person who is not out of his comfort zone on the witness stand.
It is the advocate’s role to help put your witness at ease by role playing. Prepare a list of questions in advance to drive home your key points. Prepare a list of questions that your witness may reasonably expect to hear from the opposing advocate. Go over soft spots in your case, and together develop a strategy to minimize or to prevent the other side from exploiting these areas, if any.
Another key strategy is to counsel the witness not to immediately answer a question. Management’s advocate may wish to object to the opposition’s question or direction. Jumping into the answer may not allow your side to pose the objection. Listen hard to the question being asked for clarity and understanding. If a witness does not understand a question, coach him or her to request that the question be restated or stated in a different way. This is always a good tactical move, even if you understood the question. It allows for the witness a brief moment to formulate how he/she can respond and to put the response in the most favorable light for your side.
It is important for all of the witnesses to be briefed and I would offer that it is best that they know what other witnesses are going to testify, and the questions they will be asked. It is very helpful for them to learn how their testimony is going to fit in this mosaic of evidence. Always remember your advocate is a thespian telling a story, and the story is how and why the trier of fact should find your version to be the most credible.
Another important coaching technique is to remind your witnesses that while they may be answering the questions on the stand, the person they are trying to impress is the judge or the arbitrator. They should always focus their answers directly to them.
I remember one hearing where I believed the arbitrator’s first job was a waiter at the last supper. We all know how hard it is to sometimes focus and stay alert right after lunch. This was readily apparent here and on the fly I coached our witnesses to purposely engage the arbitrator to keep him from nodding off.
Strategically, it is best to start and end with your most convincing witnesses. You want to open your case with hard hitting facts to support the action you took, and why it was for just cause or to promote the efficiency of the service.
In psychology and motivational sports psychology, there is what is known as the power of the last dominant thought. In the 1960 World Series seventh game, bottom of the ninth inning, Elston Howard walked out to Ralph Terry on the mound and admonished not to throw Bill Mazeroski a hanging curve ball. What did Ralph Terry hear – a hanging curve ball that Mazeroski hit a walk-off home run to give the Pittsburgh Pirates the World Series over the New York Yankees. Your last witness is there to do the same thing. He/she is there to make a powerful close, and to put the last dominant thought in the mind of the judge or the arbitrator.
Witness preparation is paramount to success. In my young federal career I was the trout that rose to the bait. At a meeting with a high ranking military officer I heard him dress down one of his direct reports that he did not take care of his “7 P’s.” Never having heard that expression before I asked the Colonel what are the “7 P’s?” He glared at me (in jest) and told me to listen well. The “7 P’s” are: prior proper planning prevents piss poor performance. I never forgot them. The “7P’s” are an integral part of your witness preparation.
In my next article I will go over some tips and strategies to witness preparation.