On the Other Side of the Rails

EXPLORING THE HEART OF NURSING


You Are Hereby Commanded to Appear:
What to Expect When You Are the Expert Witness

Authors:
Shaunestte N. Terrell, JD | Attorney
Barbra A. Bachmeier, JD, MSN, APRN, NP-C, DF-AFN, FAEN
Valerie Sievers, MSN, RN, CNS, SANE-P, SANE-A, DF-AFN

But I am Not an Expert…Oh Yes You Are!

In the current health care environment, emergency nurses and physicians can provide care for patients who have been affected by crime and violence as well as patients who may suffer a damaging outcome in response to care. Considering the spectrum of patients that present to emergency departments and urgent care facilities with varied illnesses and injuries, health care professionals have come to expect at some point in their career that they may be involved in criminal or civil litigation.

Testifying in front of a judge or jury can be intimidating and unnerving. There is no set of requisite qualifications other than your training, experience, and education in the area you are to testify. Forensic nurses, as well as emergency nurses, practice in a clinical setting where litigation is common, so receiving a subpoena to testify at trial is possible. Therefore, it is essential for emergency nurses and forensic nurses to understand the basics of testimony to the courts and to prepare and practice their testimony before trial.

Criminal or Civil Case…That is the Question

Once you receive a subpoena, the first thing you will need to figure out is if the case is civil or criminal. If it is a criminal case, the action will be captioned with a state and a name, such as “State of Indiana v. John Doe.” If it is a civil case, the action will be captioned with two names, such as “Jane Smith v. John Doe.” Whether the case is criminal or civil does carry with it significant importance as the two processes are markedly different.

In a criminal proceeding, you will need to speak with the prosecutor assigned to the case. Ideally, the prosecutor will contact you early in the prosecution and meet with you before any formal proceedings. The prosecutor will review the patient’s chart with you and go over any questions the defense may ask. The prosecutor will likely have an idea of what the defendant’s argument may be. Being aware of the defendant’s defense can be very helpful in preparing for both deposition and trial. The prosecutor will also likely go through the questions that will be asked of you in the trial. These questions typically follow the same chronology in every case and vary only on the specific exams of each patient.

At a criminal deposition, both the prosecutor and the defense attorney will be present, but it is unlikely the defendant will be there. If you are called as a witness for the state, the defense attorney will ask most of the questions. The prosecutor will have a chance to ask questions of you after the defense attorney finishes. If proper preparation takes place, there should not be any surprises at deposition or trial.

In a civil proceeding, the first matter of importance is to determine if you are the proper person to testify. If you are the professional who examined the patient, the answer is likely yes. If not, determine if you are being called as a skilled or expert witness.

Additionally, identify any other witnesses who may be beneficial to the case and make sure to inform the attorney of those people.

In a civil deposition, the plaintiff’s attorney, the defense attorney, and any defendants are likely to be present. There may be multiple defendants, such as, but not limited to, the perpetrator, schools, churches, daycares, or other negligent parties. The civil deposition differs from the criminal deposition in that it is very similar to trial. While a criminal deposition is primarily a fact-finding proceeding, a civil deposition can be significantly more contentious because the attorneys are trying to avoid a costly trial. A criminal case is much more likely to proceed to trial than a civil case. Many criminal cases are resolved by way of plea agreement, but many sex crime cases still go to trial. Similarly, many civil cases come to a resolution by way of settlement. However, you will still likely be required to give a deposition at some point.

What to Expect When Preparing to Testify

The single best predictor of your success in testifying will be how well you know your chart. You must review the chart to the point where you know all of it without looking at it during court. This familiarity with the record will increase your credibility with the lawyers, the judge, and most importantly, with the jury. If you have a slip of mind when testifying, never hesitate to say that you don’t know or ask to review your chart. Never, under any circumstance, make up an answer. Not only is that perjury, but a jury will immediately sniff out any insincerity.

You should also be intimately aware of the scope and standards of your practice. Make sure to review the national best practices, guidelines, and the standard operating procedures of your employer; these are all fair game for both direct examination and cross examination. In fact, you are almost certain to be asked in court by the prosecutor if the specific process you followed is accepted as a best practice. Be prepared for a defense attorney to follow up on that by asking what those best practices are.

Make sure to dress appropriately. Come to court clean, well-groomed, and conservatively dressed. Act sincere and respectful always in front of the judge and jury. Do not talk over the lawyers even if their tone with you is combative. Let the lawyer ask the question, and calmly respond. Do not raise your voice. While answering the lawyer’s question, you want to turn to the jury and answer to them. Keep your cool no matter how contentious the lawyer may try to be. Your credibility is your strongest tool, and failing to do any of these things can destroy that credibility with the jury.

Take a deep breath and remember that your only job is to tell the truth. If you have adequately prepared for your testimony, making it through deposition or trial should be easy. Keep in mind that the defense attorney has a job to do, and part of that may mean trying to make you look inept. As long as you are properly prepared, and you keep your cool, the jury won’t buy it!

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Guest Contributors

Shaunestte Terrell, JD , Attorney

Shaunestte N. Terrell, JD | Attorney
Cohen & Malad, LLP
[email protected]
www.cohenandmalad.com

Shaunestte Terrell is an attorney on the Sexual Abuse Litigation Team at Cohen & Malad, LLP. Shaunestte brings years of experience prosecuting crimes of rape, child molest, human trafficking, and other crimes against protected persons. As the sole Deputy Prosecutor handling sex trafficking in Indianapolis, Shaunestte frequently participated in undercover investigations which she then prosecuted in state court or referred to the United States Attorney’s Office. Considered the subject matter expert in sexual assault and domestic violence for Indiana’s 91 elected Prosecuting Attorneys, Shaunestte developed state-wide prosecutor-based preventive law programs and developed curriculums for trial advocacy and substantive courses specific to these subject matters. Shaunestte served as Chairperson of the Indiana Sexual Assault Response Team Advisory Council, Chairperson of the Governor’s Council on Domestic Violence Prevention & Treatment, on the Indiana Supreme Court’s Domestic Violence Advisory Council, and the Indiana Protection for Abused and Trafficked Humans Task Force, amongst others.

Barbra Bachmeier, JD, MSN, APRN, NP-C, DF-AFN, FAEN

Barbra A. Bachmeier, JD, MSN, APRN, NP-C, DF-AFN, FAEN
Advanced Practice Provider/Forensic Nurse
[email protected]

Barbra Bachmeier is a family nurse practitioner and advanced practice forensic nurse examiner at IU Health – Methodist Hospital and a solo attorney in Indianapolis, IN. Her practice focus is a Guardian Ad Litem and Guardianships. Barb’s nursing career began in 1982 as a licensed practical nurse and from there worked as a staff nurse, nurse practitioner, and an advanced practice forensic nurse. She completed a clinical ethics fellowship in 2013 at Charles W. Fairbanks Center for Medical Ethics - IU Health. In 2015, Barb received the National Emergency Nursing Association Nurses Practice and Professionalism Award and inducted as a Fellow in the Academy of Emergency Nursing (AEN) in 2018. Barb was one of the original founding members of the Academy of Forensic Nursing. She proudly served and retired as a lieutenant colonel with 29 years of service in the US Army National Guard.

Valerie Sievers MSN, RN, CNS, SANE-A, SANE-P, DF-AFN

Valerie Sievers, MSN, RN, CNS, SANE-P, SANE-A, DF-AFN
Forensic Clinical Nurse Specialist
[email protected]

Ms. Sievers is a Forensic Clinical Nurse Specialist with more than 35 years of health care experience as a registered nurse, advanced practice nurse, educator and consultant with extensive practice experience in the arenas of emergency and critical care nursing, academic education and forensic clinical practice.

As a Clinical Nurse Specialist, Val provides advanced education regarding the care and treatment of patients affected by violence and abuse. She is currently board certified as an adult-adolescent and pediatric sexual assault nurse examiner, serves as a founding board member of the Academy of Forensic Nursing and is the owner of Med Law Consultants, LLC, a forensic healthcare consulting practice.

How to contribute

We encourage submissions from any reader who has been touched by the healthcare system. Some contributors may be involved directly in patient care and might want to share the impact a patient, family, or colleague had on them. Others may want to write about life “on the other side of the rails” …those moments when the caregiver becomes the patient…or maybe sees healthcare from the vantage point of a family member. Inquiries can be sent to [email protected]

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