Witnesses Are Usually Dangerous

My law firm's motto is We Win The Tough Ones, and today I had a tough one. I had to prove the client was disabled prior to December 31, 2006, but she didn't see any doctors from 2005 to early 2008. Lack of medical records in this situation normally results in a denial of benefits. To make a long story short, I was able to establish the client's disability with a retrospective opinion from her current treating physician, and with the testimony of the client and her son.

Now normally I avoid using witnesses other than the client, because they can damage an otherwise good case. In this particular case, I felt it was necessary because of the lack of medical evidence.

People that try to go to a hearing without an attorney usually don't understand that having friends or relatives testify can hurt the case, since it seems logical that the more people stating what the claimant's limitations are, the better. However, a lot of Judges will use the witnesses to create inconsistencies in the record, which ultimately will be used to find that the claimant is NOT credible (not telling the truth).

For example, say a 50 year old woman decides to have her son and daughter testify at the hearing. The son and daughter are kept out of the room when Mom testifies, which the Judge does so they aren't able to just listen to what Mom says and repeat it. When Mom testifies, she reports to the judge that her pain is so bad she has to lie down for 20-30 minutes about every 4 hours throughout the day. When the daughter comes in the Judge asks, "does your mother ever lie down due to her pain?" The daughter replies, "Oh yes, in fact she lies down nearly all the time, and at least 5 days a week never even gets out of bed." When the son is asked if Mom ever lies down due to pain he says, "Yeah, I think there are some days when she has to take a nap." So now we have taken Mom's fairly plausible response and made it inconsistent with the record. Its possible Mom was minimizing her need to lie down, and the daughter was exaggerating in an attempt to "convince" the Judge to approve Mom, and maybe the son really doesn't know what Mom's day to day problems are. Unfortunately, the Judge is liable to find everybody not credible and deny the case.

This is just one example of why I generally would rather build the case around strong medical evidence and at the hearing have only the claimant testify. But, as with my case today, sometimes you have to do it....but be careful!

By the way...the website is now named WE WIN THE TOUGH ONES DOT COM