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Raise Your Right Hand - With Confidence

Monday March 13, 2006
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You've been called upon as a witness for a malpractice case. Here are some practical tips to know before taking the stand.
Since becoming recognized by the American Nurses Association as an accepted nursing specialty, more and more nurses have chosen to work in the field of forensic nursing, either as their primary employment or in conjunction with a more traditional nursing role. Those who have chosen this track have had some exposure regarding appropriate courtroom behavior. Others may be at a loss when they are required to testify. A nurse in Labor and Delivery, for example, may be asked to provide testimony regarding observations during a delivery; an Emergency Department nurse may be asked about an injury following an altercation or accident; a nurse working in a pediatric clinic may need to speak to suspected child maltreatment or neglect, and so on. These basic "dos" and "don'ts" will help you through the process.
The process begins
A subpoena arrives and you begin to panic. It is possible, and likely, that you have no recall of the events of that day and may not even recall having cared for that patient. If you will be testifying to your knowledge of events that occurred during your employment at a facility, your first efforts should be to contact your facility's legal counsel, who will be able to both advise you and walk you through the process. If you are called in as a consultant or private contractor, you will need to determine the initiator of the request - either the defense or prosecution.
Take a meeting
If the request came from the assistant district attorney (ADA), make arrangements to meet with that ADA. Insist on this meeting - never prepare testimony without it. Have your CV prepared and available, because both the prosecution and the defense will undoubtedly request it.
When you meet with the prosecutor, request a copy of your nursing notes so that you may use them both to refresh your memory and to study prior to the trial. Although you may refer to them, you may not read your notes during the proceedings. If possible, commit the information to memory. Ask questions like, "What will be asked of me?" and "On what will my testimony focus?" Know the key points that need to be expressed to the court. If diagrams or photographs are to be used, review them. If you feel that you cannot adequately describe a situation or injury without a diagram, suggest it.
The trial date arrives
Get a good night's sleep. Dress professionally; a plain business suit is appropriate for both men and women. Never wear anything that will distract the court. You want the jury to focus on your testimony, not your outward appearance. Lastly, be on time.
Once you are sworn in, you will be asked for your name and address. If you choose, you may give your place of employment as your contact address. You will be asked to describe your education, work experience, credentials, professional organization memberships, etc., after which the court will determine whether you are to testify as a fact witness or as an expert. A fact witness may testify only to the events of the case. An expert may render an opinion related to the findings.
Be honest
If you can't remember, say so. Don't exaggerate, color, or in any way change the facts of the case. Don't fill in the areas you have forgotten. Tell the truth as you remember it. If a question is asked and you need the question clarified, say so. Answer only the question asked. Don't offer information that hasn't been requested. If you are asked to answer a question with a "yes" or "no" and you believe that an explanation is necessary, tell the court that you cannot answer in those terms. If either the prosecutor or the defense attorney objects to a question, stop. Don't answer until the court has made its decision as to whether the answer will be allowed (overruled) or the objection will be sustained.
Remember that you are educating the jury. Look at them; talk to them. Remember that most jurors don't have a medical background. Often, you can't avoid medical terminology, but, if possible, help the members of the jury understand the medical findings in lay terms. For example, when the documentation describes areas of "blue ecchymosis," you may need to use the word "bruise" in your explanation. Unlike a grand jury, where jurors may ask questions, jurors in a trial might not ask for clarification - you have one opportunity to have your testimony understood.
When cross-examination is complete, you will be allowed to leave the courtroom. Although it is not everyone's practice, I find it helpful to contact the ADA several days after my testimony for a critique.
My hope is that courtroom protocol will one day be incorporated into the course requirements of all undergraduate and graduate nursing programs. It would make it a little easier when the day comes that those nurses must raise their right hands.