Most medics would rather endure an enema than face the prospect testifying in court. Yet, inevitably, the day usually comes when a process server pays a visit to your station and delivers a document that begins:
“YOU ARE COMMANDED to appear at the time, date and place set forth below to testify … [and further] … You, or your representatives, must bring with you the following documents, electronically stored information or objects, and permit their inspection, copying, testing or sampling of the material …”
Thereby follows a long list of items that may include patient care forms, protocols, policy and procedures manuals, and even your income tax returns for the last few years.
After the shock wears off, you set about trying to understand why this affliction has been visited upon you. The best case scenario is one where you simply rendered care to a patient who’s suing the person who injured her, or where you rendered care to the victim of a crime. You’re simply being called to testify to the extent of the patient’s injuries as you found them—a so-called “fact witness.”
The worst case is when you’re the defendant in a lawsuit, being sued for damages by a former patient. You’re being called to a deposition where you are, essentially, going to be made to give testimony against yourself.
In either case there are some important things to understand. First, even though the lawyers may seem intent upon ripping your heart out and depicting you as Satan’s helper, for them it is not personal—it’s just business. They have a job to do, and they do it routinely, the same way that you start IVs and dispense oxygen. It’s just their job.
Second, there are ways for you to prepare and present yourself in the best possible light, making the opposing lawyer’s job hard.
Here are some basic rules for testifying, either in court or at a deposition.
Review every document available pertaining to the matter in question, starting with the patient care report. It’s usually at this point when you’ll fully begin to understand why you should have paid better attention in class during that boring session on documentation, the one where you fiddled with your smartphone and tweeted and played solitaire during the lecture.
You see, the opposing lawyer will study your PCR in great detail, have a paramedic expert go over it with a fine-toothed comb looking for defects, study your protocols and standing orders, search textbooks and journals for current standards of care, and compare your actions against them.
We’ve all heard the adage, “if it wasn’t documented, it wasn’t done.” Keep that in mind as you review your documentation. Since you’ll often provide testimony years after the fact, don’t pretend you can remember details of the case, because you won’t. You’re at the mercy of your own documentation.
So, review your PCR and the story it tells, because that’s the story it will also tell the jury, if there is one, or the judge if there’s not. But don’t try to memorize your testimony. That doesn’t work. Begin your review days before the scheduled testimony and go over it again and again. The better you know the case, the better you’ll do.
In a typical trial there are going to be many witnesses. While jurors will listen attentively to you, they’ll inevitably forget exactly what you said or confuse what other witnesses said with your testimony. But when they retire to the jury room to deliberate, your documentation will be there for them to study. This is the document they’ll use to remember what you said, and this is the document that will tell your story. This is your chance to tell a story that’s either favorable or devastating to your side. At minimum, your documentation should prove you provided the requisite standard of care.
Know Your Case
Be prepared to define and explain every single word and medical term you wrote. Check your spelling, and if you find that you misspelled a term, be prepared to say, if questioned, “Yes, ma’am, I sure did misspell that. That’s what happens sometimes when you’re in a hurry trying to get ready for the next call. The correct spelling is H-E-M-A-T-O-M-A.” That takes the sting out of the other lawyer’s point. Of course, you could have just written “bruise” in the first place and you wouldn’t have had to explain it.
When documenting, resist the impulse to “show off” by using highfalutin medical words. You won’t impress anyone and if you use a term incorrectly you’ll get nailed for it.
Remember, the jury likely won’t understand that the patient had “a hematoma at the right greater trochanter.” You must be prepared to explain everything you wrote in detail.
Also prepare to explain how the devices you use work. If you’re asked to explain what a pulse oximeter reading means, you must also be able to explain what a pulse oximeter is and how it works. If you’re asked to explain an ECG strip, be prepared to dissect it, explaining it as though you’re teaching a rookie class about it—because that’s what your judge and jury will, in effect, be.
But don’t assume the lawyer doesn’t know about those things. He or she will be thoroughly briefed and educated by their expert and may, in fact, be a physician or nurse as well as a lawyer.
Will your lawyer prepare you adequately for your testimony? Don’t count on it. If you’re called by an assistant district attorney, understand he or she may not even look at the case until the morning of the trial, and may or may not have time in advance to discuss your testimony. But the more important the case is, the more time you can expect they’ll spend preparing you.
If you’re testifying in a civil case as a fact witness, you have the right to have a lawyer with you. Some insurance policies available to medics will provide legal representation for depositions and court testimony even when you’re only a fact witness.
If you’re a defendant, insist your lawyer spend enough time with you prior to the court proceedings to ensure you’re comfortable with your testimony. Oftentimes your lawyer will work for the insurance company that’s defending both you and your service, and he or she may be more interested in your agency’s interests than your own. If you sense any conflicts, consider retaining your own lawyer. For this reason, it may be prudent to carry your own malpractice policy even though your service or municipality is insured.
Tell the Truth
Be truthful, honest, direct and answer simply. An old lawyer’s advice to clients is this: “If you’re asked what time it is, don’t explain how to construct a timepiece.” Listen to the question, think about your answer, and answer only the question asked. If you’re asked, “Do you know what time it is?” your answer should be either yes or no. If you’re asked to tell the jury what time it is, say the time and stop. Do not anticipate a lawyer’s next question. Do not go beyond the answer to the immediate question. An opposing lawyer loves nothing more than a “runaway” witness. He will allow you to go on and on, digging your grave a little deeper with every statement you make. Don’t let that happen.
Never answer with a guess. If you don’t know, say so. If you don’t understand the question, simply say, “I am sorry, but I don’t understand,” or “I don’t understand. Can you repeat the question in a different way?”
If you’re asked to recall something, say, “I don’t recall.” If you think the answer is in your documentation, say, “May I refer to my call documentation?” And you will be able to do that. Take your time, find the item you are looking for and then state, “I wrote in my documentation [and say whatever you wrote].” If you have no present recollection, NEVER attempt to fabricate. Just say, “I’m sorry, but I don’t recall.”
It’s best that you don’t take personal notes that aren’t a part of the official medical records with you into court, because anything you refer to may be inspected by the other side.
Don’t try to be cute. In gambling the rule is never to play “the other man’s game.” In court, it’s the lawyer’s game. In the back of the ambulance it’s your game, but in court you cannot win the lawyer’s game.
Before you answer, be sure your lawyer is not going to object to the question. Give your lawyer time to enter an objection. And if lawyers for both sides start talking, stop and don’t start again until the judge or lawyers instruct you to.
And always address the judge as “Judge,” or “Your Honor.”
Look and Act Professional
Dress professionally. Wear your uniform if it’s appropriate. The jury will form its first impression of you as you walk into the courtroom and take the oath. If you don’t have a nice uniform, then dress as you would for church or a professional job interview.
Never chew gum or tobacco in court. Turn your cell phone and pager off.
Be polite at all times. Don’ allow the opposing lawyer to make you angry. Opposing lawyers like nothing better than making you angry and throwing you off stride.
Don’t visibly reaction to a question. Keep a calm, steady and professional demeanor at all times.
Address only the people with whom you’re trying to communicate. If you’re being deposed, you’ll most likely be in a conference room at a lawyer’s office. There will be a long table, and you’ll sit at the head at one end. Lawyers will be on either side. The court reporter recording your testimony and the videographer filming it will be at the opposite end.
Remember, the camera is your “audience” for a deposition, because if your deposition is shown in court, the judge and jury will see what the camera saw and recorded. So look toward the camera and talk to it. Usually, but not always, the videographer will stand or sit next to the camera, so that’s a “human” you can talk to. Or, simply pretend the camera is somebody you like very much and talk to it as if it were a person. That’s not easy, but you can learn to do it.
Sit close enough to the microphone so you can be heard. Speak slowly and loudly. If the judge admonishes you to “speak up” be sure you keep your voice level so everyone can hear you. Remember the court reporter must record everything said, so never talk over someone else. Always answer verbally. Do not nod yes or no, or say “uh-huh.”
If you’re in court, you’ll be in the witness box and your audience will be the jury, if there is one, or the judge. Now you’ll have to shift your gaze as appropriate. Look at the lawyers when they’re talking to you and asking questions, but when you answer, turn and talk to the jury or, if appropriate, the judge. Testifying is all about communication. Whether you’re a fact witness or the defendant, your job is to tell your story to the finder of fact in a way that’s both believable and persuasive. Make your testimony a conversation. Establish eye contact with each and every member of the jury, and do so repeatedly. Talk to them as you would a friend and make them your friends. You also may have to teach them about the condition of the patient and what you did for them. Be prepared to explain each intervention and treatment you performed in detail. Approach them as if you were teaching a brand new medic student. Watch their reactions. Are they paying attention? Are they smiling or frowning?
Never answer a question with a question of your own. That makes you appear argumentative and unprofessional. Never argue. Always show professional courtesy.
Be positive and confident, but not overbearing. Try not to allow yourself to get trapped by saying, “I never” or “I always” when describing your approaches to treatment. Realize things are seldom that absolute.
Be aware that lawyers will try to ask you questions that suggest your answer. It’s perfectly all right for the opposing lawyer to ask you leading questions, so beware of the question that begins, “Wouldn’t you agree that …?” Listen carefully and frame your answer carefully.
There’s nothing wrong with spending a little time formulating your answer. If you need more time, try taking a drink of water. But avoid giving the appearance of attempting to avoid the question.
While testifying can be stressful, careful preparation will alleviate some of that stress and enable you to communicate effectively and persuasively with the lawyers, judge and jury.
William E. "Gene" Gandy, JD, LP, has been a paramedic and EMS educator for over 30 years. He has implemented a two-year associate’s degree paramedic program for a community college, served as both a volunteer and paid paramedic, and practiced in both rural and urban settings and in the offshore oil industry. He has testified in court as an expert witness in a number of cases involving EMS providers and lectures on medical/legal aspects of EMS. He lives in Tucson, AZ.
Steven “Kelly” Grayson, NREMT-P, CCEMT-P, is a critical care paramedic for Acadian Ambulance in Louisiana. He has spent the past 14 years as a field paramedic, critical care transport paramedic, field supervisor and educator. He is a former president of the Louisiana EMS Instructor Society and board member of the Louisiana Association of Nationally Registered EMTs. He is a frequent EMS conference speaker and the author of the book En Route: A Paramedic’s Stories of Life, Death, and Everything In Between, and the popular blog A Day in the Life of An Ambulance Driver.