There are a few fundamental rules for representing a client at trial. We think of them as Lawyering-101.
First, never ask a question to which you don’t already know the answer. Second, take the sting out of the issues that are harmful to your client by bringing them up before the other side has a chance to make it look like you are hiding something. And, third, ask questions and raise issues that will fracture the case the other side tries to build
In other words, make your witnesses look brilliant and make their witnesses look stupid. Simple. After that, the most compelling side wins.
Simple, that is, for the lawyers; we know what to expect and have [presumably] planned for the variables and strategized by predicting what the other side might do or say. For the witnesses, on the other hand, it can be a hellish nightmare that is second only to drowning or being buried alive or falling into an unwinnable argument with your spouse.
For EMS providers, it can be even worse. EMS providers are not generally wired to be adversarial or confrontational. EMS providers are generally wired to fix things, make things better — to bring peaceful resolution to chaotic situations. On the street and in the heat of the moment, EMS providers shine; but in the courtroom, empathy, compassion, and good will are foreigners and EMS providers are like fish out of water. Way out of water.
Nevertheless, there is hope. EMS providers need not fear the courtroom. Far more often than not, EMS providers end up in court as witnesses rather than named parties, so there is a formula for survival. There is a way to emerge with your pride, integrity, reputation and sanity intact.
#1: Prepare for trial at the scene
As much as I detest the suggestion that EMS providers should approach patient care as if it’s going to be challenged by a lawyer, EMS providers should approach patient care as if it’s going to be challenged by a lawyer. If that’s the motivation medics need to strive for excellence, so be it. Patient’s don’t care what your motive is, they only care — and expect — the very best EMS has to offer.
If, on every call, you perform a thorough, systematic assessment followed by the appropriate care based on your objective findings and established standards, and follow up in the most — medically — appropriate way, then you are most of the way to not having to worry about what it will look like in court.
Likewise, if your bedside manner and emotional approach are consistent — and appropriate — you will have even less about which to worry.
The reality is that every EMS provider has two essential choices: 1) Provide the best, most compassionate, most comprehensive patient care to every patient, every time without exception, or 2) find another job. If you are a provider somewhere in the middle, the courtroom will eat you alive. And rightly so. Don’t say I never warned you.
#2: Document like your life depends on it
Like patient care, I object to the idea that providers should document with lawyers in mind. Nevertheless, like patient care, it is a fact of EMS life.
Your documentation is most commonly the only record of what did — and didn’t — happen on any given call. It’s more than just an aid for your memory years later when you are agonizing on the witness stand. In many cases, it is viewed, by a judge or jury, as the final word.
However you choose to do it, your documentation must do more than reflect the basics of the call. Your documentation, particularly the narrative, should [must] paint the whole picture and tell the whole story. Barely legible scrawl that says “50 yo ♀ with c/p, sob and + hx of ♥...” is not going to get it done; for the patient or for you.
On the other hand, a neatly printed “50 yo ♀ c/o non-provoked, dull, sub-sternal chest pressure, 7/10, radiating to left arm and jaw, x30 min without relief. Pt. also c/o shortness of breath simultaneous with chest pressure. Pt. states it feels like she can’t catch her breath. Pt. has hx of angina. Pt. states she attempted to self tx with ntg, no relief...” will not only benefit the patient down the line, it will show the court and everyone in it that you performed a competent assessment, and thus you must be a competent provider, and thus you must be a credible witness.
Simply put, document every call as if the patient’s life and your career depend on it. Because more times than you would ever want to think, it’s true.
#3: Know your stuff
The phrase, “knowledge is power,” has guided humanity for millennia and it is as true today as it has ever been. In EMS, however, it seems to have a meaning of its own.
In EMS, “knowledge” connotes the power to change and even save lives; to bring peace where there is disorder; to bring relief from fear. As it is with the rest of the world, however, ‘available’ knowledge is virtually infinite and utterly useless; only ‘possessed’ knowledge can have an effect.
As an EMS provider, operating under a myriad of protocols, policies, and procedures, all of which are dependent on an ever-expanding baseline of information and skill, if you don’t have the knowledge AND skill necessary to do what has to be done, your presence is useless and you will have failed.
An encyclopedic knowledge and understanding of the respective protocols, policies, and procedures, combined with an equally comprehensive grasp of the baseline information and skills required of your particular level of licensure or certification should be the bare minimum standard to which you hold yourself. If, for no other reason, than that is the bare minimum standard to which you will be held in court.
#4: Exude confidence, exclude cockiness
Remember that a confident witness is a credible witness. If your performance on scene was appropriate based on the foregoing, and your documentation is solid, and you “know your stuff,” testifying to all of it in court should be a breeze.
If you can take advantage of the confidence that comes with having done the right thing, it’s easy to speak clearly and loud enough for everyone to hear you; it’s easy to make eye contact with the attorneys and the jurors; it’s easy to answer whatever questions are asked, because you either know or don’t know…and both are acceptable in proper context. That’s right, if you know the answer, great! If you don’t know the answer and simply say “I don’t know” or “I don’t recall,” your showing of vulnerability and integrity will most likely win you points with the jurors.
On the other hand, if your performance on scene was less than appropriate or your documentation marginal or you are not 100 percent on protocols, policies, procedures, drug dosages, etc…then that well of genuine confidence will be hard to tap. When this scenario develops, EMS providers – particularly the younger ones – tend to compensate in one of two ways.
Some will respond with faux confidence, also known as cockiness; quick and short answers, gruff tones, piercing eye contact with the weaker-looking individuals in the room, and responses that are simultaneously vague and absolute. The cocky witness will rarely admit to not knowing, rather he or she will try to answer every question — even if he or she does not know or is not sure.
As sharks can smell minute amounts blood from great distances, judges, jurors, and attorneys can sense any trace of cockiness. The outcome of their sensing your cockiness will resemble what happens when a shark reaches the source of the blood.
Others will land on the completely opposite side of the spectrum: quiet, fumbling responses and no eye contact whatsoever — except with the attorney on his or her side, as if to beg either approval or mercy. Answers will be unsure and open to interpretation. The agony will permeate the room and, while some may be empathetic, judges can become frustrated; jurors will question credibility and opposing attorneys will pounce like a cheetah on a baby gazelle.
The most important thing to remember when it comes to testifying as a witness is that judges, jurors and (most) attorneys are just people and will respond best where there is a genuine and human connection. Don’t try to be something or someone you are not. And for Pete’s sake, don’t try to take control of the situation. It’s not yours to control.
#5: Accept that the other side is going to try to make you look stupid
Every time you take the stand you have to know and accept that the attorney on one of the two sides is receiving upwards of $500 per hour to make you look like a fool. That is fact.
Remember, court is business, not personal. Whatever opposing counsel says about you directly or implies through questions is only intended to achieve victory for his or her client. It has nothing to do with you.
On cross examination, the attorney will (with 99 percent certainty) already know the answer to every question asked. If you attempt to embellish or dodge or distract, then you will probably be crushed with a barrage of follow up questions intended to destroy your credibility, your skills, and your reputation. It’s just business.
Don’t let anyone get inside your head. If your care was appropriate, your documentation good, and your follow-up medically correct — and you know your stuff — then answer truthfully and stick to the truth. Like any other predator, opposing attorneys hunt by sniffing out weakness. Where there is none, the hunter will move on.
The bottom line is simple. Solid providers will be fine. Everyone else will struggle. Perhaps this will motivate some to seek improvement and others to seek alternative careers. In the end, the substandard provider cannot be surprised or sad when they are chewed up in court. This is their warning.
