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Tactics in Practice- A credible voice, or a credible risk?

Roxanne Covington, Zarwin Baum DeVito Kaplan Schaer Toddy P.C.

By Stephen Kurczy

Most attorneys have experienced the frustration of spending years in preparation for a case, only to have their fate decided by a jury's fickle determination as to which party was most credible. A client's accidental contradiction on the witness stand, his overconfident tone or a touch of nervousness can lead a jury to a conclusion that turns a case. Of course, the object of the game is to ensure that such a break turns in your favor, but sometimes it's better not to take a chance at all.

How to decide? One Philadelphia-based attorney, Roxanne Covington, has developed a client-assessment plan that helps quantify her case's risk level.

"Assessment is about deciding whether to settle or pursue litigation," says Covington, of Zarwin Baum DeVito Kaplan Schaer Toddy P.C. "It's more than just assessing credibility. It's assessing [the client's] marketability and whether they'll be helpful to your case as a witness."

Recently, Covington defended a man whose car was borrowed by a relative, who later became involved in a deadly, high-speed chase. Another injured party sued Covington's client, in a case that ultimately hinged on the issue of permissive use. Before Covington could formulate a defense-or an opinion-she had to know if her client would be believable.

So the two met in an hour-long, one-on-one interview that was followed by several telephone conversations. Covington later observed him under the pressure of a deposition. She ultimately determined that he would appear credible to a jury and called him to testify. In the end, Covington's client prevailed.

In assessing credibility, Covington evaluates consistency of statement, demeanor and behavior. When looking for consistency of statement, she determines if she believes the client's story.

"You get as much information as you can before you talk to your client," Covington says, explaining that she pores over reports, damages estimates, records and photographs prior to welcoming her client into a setting in which they can be honest and open. "I work very hard to try and build a relationship of trust where they feel comfortable with me. I want them to be up-front about the circumstances."

Such a setting allows her to assess the client's behavior. Does the client have a positive attitude, conversational ability and communicable mannerisms? She also assesses the client's ability to maintain composure in the pressure of a courtroom.

"You talk to them about the courtroom and the environment," Covington suggests. "You may get someone in your firm to question them as opposing counsel to see how they respond to stress."

Equally as important is how the client will be perceived by a jury. Is he coherent, pleasant, amicable, nervous, hostile?

Hopefully, the client will display a personality that will win over a jury. But Covington knows such is not always the case, and she warns against the urge to force credibility upon a witness. Like most attorneys, she has seen cases fall apart as a result of an attorney's failure to properly assess a client's credibility.

Covington's advice: Better to not let them testify at all, than to let them lose the case. She recalls her defense of a bitter DUI driver. "If I had put her on the stand, then the jury would have been looking at this crazy drunk woman. The best thing that woman did was not show up, because we won the case."

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