By Thomas Wyatt
Judge, Tennessee Bureau of Workers’ Compensation
SOMETHING TO THINK ABOUT
A poll of lawyers and judges would certainly find overwhelming support for rules of evidence. Some would say these rules promote orderly trials and decisions based on reliable documents and testimony. Others would point out that evidentiary rules keep judges from admitting improper evidence simply because it fits the judge’s view of the case. Some lawyers like rules of evidence because they give them an advantage over less diligent opponents.
But not all litigants are represented by lawyers. In the Tennessee Court of Workers’ Compensation Claims we see many self-represented litigants, most of them injured employees. The percentage of cases on my docket that are prosecuted by self-represented employees has varied between twenty to thirty percent.
The number of self-represented litigants is sizeable enough that we have implemented multiple strategies to assist them. Our Court has authored a handbook alerting unrepresented parties to the basics of navigating a claim through court, including the requirement that they comply with rules of evidence. We have also produced a video of a hypothetical case proceeding through a trial. The script includes several scenes involving common evidentiary issues encountered by self-represented litigants. Further, the Tennessee Bureau of Workers’ Compensation has an Ombudsman Program that includes access to attorneys. Unrepresented parties may speak to ombudsman representatives to obtain information about substantive, procedural, and evidentiary issues they encounter as their case progresses.
As judges, it is easy to overlook how daunting it is for unrepresented persons to seek resolution of a case in court, especially when they face a party represented by skilled counsel. Look at it this way: how would you feel if, tomorrow, you were told you had to make your living as a roofer or a welder? Even if your new employer gave you some time to learn your new craft (on your own, unpaid, time of course) and provided booklets, videos, and people to talk to about what to expect on the job, I doubt any of us would relish such a change in our lives. We would know that, at some point, we would be required to perform a job for which we might not be physically or skillfully capable. We would be required to work alongside trained and experienced people who expect us to work efficiently and productively. I don’t know about you, but just thinking about working as a roofer or a welder makes me anxious and uncomfortable and causes me to doubt whether I could make a living.
Recently, I came across a podcast on which the participants discussed whether rules of evidence in non-jury cases are fundamentally unfair to self-represented litigants. The podcast is a part of a series of discussions collectively known as “Excited Utterance” hosted by Professor Edward Cheng at Vanderbilt University Law School. By the way, Professor Cheng provides outstanding training on evidence to our Court.
The podcast in question, dated October 12, 2022, contained discussions between Professor Cheng and Professor Andrew Budzinski of the Clark School of Law at the University of the District of Columbia. Professor Budzinski has authored an article in the University of Richmond Law Review entitled “Overhauling Rules of Evidence in Pro Se Courts.” He suggests that rigid application of rules of evidence poses an obstacle to assuring fundamental fairness and due process of law to those whom, almost always because of financial limitations, seek legal redress without representation of counsel.
Professor Budzinski raises numerous arguments supporting relaxation of rules of evidence in courts where many cases involve unrepresented parties. Foundationally, he argues that rules of evidence historically arose to protect against juries deciding cases on improper evidence. He points out that most cases with unrepresented litigants are decided by trained judges, who are better equipped than jurors in assessing the reliability of evidence. He also argues that, while rules of evidence may seem neutral because they apply to all parties, these rules, in fact, disadvantage unrepresented litigants in courts where adversarial parties possess the financial means to retain skilled counsel for representation.
We see the issue identified by Professor Budzinski play out scores of times each year in the Tennessee Court of Workers’ Compensation Claims. In Tennessee, the employee must prove every element of his or her case. That includes proving that their claimed injury arose primarily out of and in the course and scope of employment. Proof of this element must include medical expert testimony based on a reasonable degree of medical certainty that the work injury contributed more than fifty percent to the causation of the employee’s disability and need for treatment, considering all causative factors (such as pre-existing conditions and injuries.)
In our court, the Tennessee Rules of Evidence apply by statute. Further, under Tennessee law, physicians are exempt from subpoena power. This means that a party wishing to present medical expert testimony in court must pay the physician’s deposition fee, hire a court reporter to transcribe the deposition testimony, and then present the physician’s opinions by asking questions that are not leading or otherwise objectionable under the Tennessee Rules of Evidence.
The Workers’ Compensation Act also allows parties to present medical evidence by form. That process requires the payment of a fee to the physician. It also requires strict compliance with statutory mandates such as introduction into evidence under the original signature of the physician and inclusion of the physician’s curriculum vitae.
Our observation as judges has been that even lawyers stumble at times in complying with the rules of evidence. Unfortunately, we have also noted that self-represented litigants are almost never able to navigate the financial and procedural requirements to introduce the essential medical evidence needed to give them a chance to succeed at trial. Judges in Tennessee can do very little to lighten the load of the self-represented litigant in introducing evidence. Our appellate courts have ruled that unrepresented parties are held to the same standard as attorneys in complying with applicable procedural and evidentiary rules. Judges have been held in error for instructing a self-represented party about requisite details such as obtaining signatures on forms and sworn signatures on affidavits.
So, what does Professor Budzinski recommend to address this problem? He did not advocate total relaxation of rules of evidence in non-jury cases. He did suggest removing some of the “hoops” required by rules of evidence. For instance, he hypothesized a custody case in family court in which a parent sought to introduce a child’s report cards to prove the child’s worsening grades. He suggested that a copy of the report cards on the form used by the school should be admissible. He saw little substantive need for the testimony of a custodian of records to lay the foundation of the report cards falling under the business or official records exception to the hearsay rule. He argued that a trained judge could appropriately assess whether the submitted copy had sufficient indicia of reliability to justify the court’s consideration of the report cards as evidence.
Applying the spirit of Professor Budzinski’s recommendation to the workers’ compensation context, a court might admit into evidence medical causation letters on the physician’s letterhead, signed by the physician, and accompanied by the treatment records. A party introducing causation evidence by report would be required to share the report with adversary parties sufficiently in advance of trial so that the party could take the deposition of the doctor to cross-examine the opinion.
Of course, no easy answers exist to the above concerns. Represented parties are entitled to fundamental fairness, too. In our court, relaxation of the Tennessee Rules of Evidence will require statutory and regulatory change after slow and complex procedures. At this point, all we workers’ compensation judges can do is be aware of the difficult road facing self-represented litigants and assure they receive the available information to prepare their cases for trial.