The geriatric nurse as witness: Tips for effective testimony

Litigants 

In a civil lawsuit, such as a malpractice suit, the litigants are called “plaintiff” (person suing) and “defendant” (person being sued). In a criminal case, the litigants are the “state” (or “people” or “commonwealth”), also called the “prosecution,” and the “defendant.” In an administrative proceeding before the board of nursing or other government entity, the litigants are identified as “petitioner” and “respondent.” Litigants may be witnesses. For example, a plaintiff or a defendant in a malpractice suit may testify in a deposition, or a defendant in a criminal case may choose to testify during trial.

Types of witnesses 

Witnesses are of two types: fact and expert. Fact witnesses are individuals who have observed or participated in an incident or who work in a particular facility and therefore have relevant information or facts about the incident itself or the operation of a facility or agency.

Expert witnesses have specialized or advanced knowledge or experience that can aid the decision maker (jury, judge, or government agency) in understanding the facts of a case and reaching a decision or verdict. Unlike fact witnesses, whose testimony is confined to facts known to them, expert witnesses may offer opinions based on those facts.

For example, in a malpractice case against a nurse, nursing assistants, and the LTC facility employing them, the nurse or assistants would be fact witnesses testifying about what they observed, heard, did, or did not do. A nurse with experience in LTC, however, could testify as an expert, offering the opinion that the nurse, assistants, and their employing facility were negligent in responding to a resident's complaint. Likewise, another nurse with LTC experience or credentials could testify as an expert and opine that the nurse and assistants were not negligent.

Fact witnesses may testify voluntarily or in response to a subpoena, but in either situation they usually do not receive compensation for their time. Experts, on the other hand, are typically paid for their time in preparing for and giving testimony, whether in deposition or at trial.

Other roles for expert witnesses 

Experts are used not only at trial but also earlier in litigation. In a malpractice case, for example, a nurse may be retained as a consultant. The consultant's role is to help the attorney for either side determine whether or not the legal standard of care has been met and whether or not malpractice has occurred. The legal standard of care is the degree of care, skill, and judgment a reasonable nurse would use under the same or similar circumstances at the time of the alleged malpractice. If a nurse fails to meet that standard of care and breaches the duty owed to a resident to provide reasonable care, and if that failure and breach cause harm to the resident, malpractice has occurred. Sometimes a consultant is hired by the plaintiff's attorney before a lawsuit is started because the attorney is trying to determine whether a suit should be filed, that is, whether the legal standard of care has not been met and malpractice has resulted.

The nurse consultant typically reviews all patient records, relevant nursing literature, and transcripts of depositions of fact witnesses (if available), then applies the legal standard of care to all of that information. On that analysis, the consultant renders an opinion: either the staff did not meet the standard of care and was negligent, or the staff's actions were within the standard of care and were not negligent.

Another role of an expert witness is as litigation consultant. The consultant, retained after a lawsuit has been filed, helps an attorney understand complicated facts or medical and nursing issues in the case. A litigation consultant also may help identify relevant literature. Additionally, the consultant may help the attorney prepare to depose or cross-examine the other side's expert. A consultant's identity and work product (eg, opinion letters, memoranda) are confidential unless, at a later point in the lawsuit, the consultant is identified to the opponent and the court as an expert who will testify at trial.

Testimony forums 

In a civil suit, a witness may testify either in a deposition or at trial or both. During a deposition, which is held anywhere but a courtroom, testimony is taken under oath and recorded by a court reporter. The opponent's attorney conducts the deposition. The primary purposes of a deposition are to discover the facts known, determine the opinions (if the witness is an expert) held by the witness, and record and memorialize these facts and opinions. In addition, a deposition allows the opponent's attorney to assess the strengths and weaknesses of the individual as a witness (ie, the witness's manner of answering questions, demeanor, conduct, and appearance during the deposition).

Because the opponent's attorney conducts the deposition, it is conducted as cross-examination. The attorney who represents the fact witness or who has retained the expert witness does not question the witness during the deposition because this attorney already knows the witness's facts or opinions. Any objection voiced by this attorney during the deposition is not ruled on during the deposition because no judge is present. The objections are recorded in the event the deposition testimony is read at trial.

In contrast to a deposition, trial testimony is testimony given under oath in a courtroom during a court proceeding, often in front of a jury. The attorney who asked or subpoenaed the witness to be at the trial questions the witness first (direct examination). Then the opponent's attorney questions the witness (cross-examination). The first attorney may ask further questions (redirect examination), as may the opponent's attorney (re-cross-examination). These latter two examinations, if the attorneys engage in them, are usually shorter than the first two.

Tips for being an effective witness 

Knowing the basics about a lawsuit, the types and roles of witnesses, and the forums of testimony as described above are the first steps toward becoming an effective witness. A number of additional tips will enhance a nurse's effectiveness while testifying, whether in deposition, in court, or before an administrative agency. Despite the anxiety a witness feels, it is crucial for the witness to listen carefully to the question asked and answer only that question.

Because first impressions include appearance, a nurse should be dressed comfortably and professionally while testifying. A suit (for a woman or a man) or a suitable dress is appropriate to the formality of the proceedings. The color of the attire should tend toward conservative (ie, avoid loud colors such as red or bright yellow). Clothing should feel comfortable; this is not the time for tight-fitting attire. A witness will not want to be distracted by the discomfort of ill-fitting clothing while testifying.

A nurse witness should insist on being addressed by professional or courtesy title (Dr, Ms, or Mr). If an attorney asks if it is agreeable to address the nurse by first name, the nurse should reply politely with words to the effect, “No, please address me as ‘Ms' (or ‘Mr' or ‘Dr') White.” If the attorney simply addresses the witness by first name without first asking permission, the nurse witness should respond politely, “Please address me as ‘Mr' (or ‘Ms' or ‘Dr') Brown.” If an attorney asks, “Is it ‘Miss' or ‘Mrs'?” the nurse witness may politely reply, “Please address me as ‘Ms' (or ‘Dr') Black.”

It may be tempting to regard a deposition as a less formal manner of giving testimony than in a courtroom because it is held in a conference room or office and because coffee or other refreshments may be available during the deposition. It is essential to recognize, however, that a deposition establishes and preserves testimony and that a transcript of the deposition can be used at trial. Accordingly, irrespective of the surroundings, the witness should regard the process of a deposition as formal and professional. Thus, a witness should not joke, not only because it is unprofessional and inappropriate when testifying but also because a transcript of the deposition does not convey levity, and the decision-maker may not realize the witness meant the statement as a joke.

A witness also needs to be careful with off-the-record comments. First of all, a witness does not have the authority to direct the court reporter by saying, “Off the record.” Even if the witness says this, the court reporter will continue recording because the reporter may not stop recording and be off the record unless directed to do so by one of the attorneys during a deposition or by the judge in court.

Also, sometimes during breaks in a deposition, the mood is lighter, and bantering may take place among the attorneys with an attempt to involve the witness or with the witness attempting to be part of the banter. However, statements the witness makes in the lightness of an unguarded moment can be used against the witness later. It is best to maintain a professional distance at all times while a deposition is in progress.

Despite the anxiety a witness feels, it is crucial for the witness to listen carefully to the question asked and answer only that question. For example, if the question is, “Do you have a watch?” the answer is “Yes” or “No,” not “It's 10 o'clock.”

If the question is complicated, the witness should feel free to ask for it to be repeated or rephrased. Similarly, if the witness does not understand the question, he or she should say so or ask for it to be rephrased. A deposition witness in particular should not suggest possible meanings when a question is complicated or not initially understood, such as, “Do you mean ‘ABC,' or do you mean ‘XYZ'?” Even if the examiner is polite and friendly, the nature of a deposition is adversarial. The witness is not there to educate the examining attorney by suggesting possible areas of inquiry but to answer only those questions asked by the examiner.

If a witness is shown a document for the first time, the witness should examine it carefully before answering questions about it, taking as much time as needed to look it over and read it carefully. A deposition witness should not volunteer to supply documents or other materials to the opponent attorney. This is a corollary of the tip about not educating the opponent during a deposition.

A witness should be alert for any questions that may contain inaccuracies, distortions, or partial truths. Similarly, care should be taken with questions about hypothetical residents or situations. Sometimes a hypothetical question will mirror the facts and issue in the case; other times the hypothetical question will reflect only part of the situation and distort or exclude other important parts. When answering the latter type of question, the witness should make clear how the hypothetical differs from the case at hand. Listening to objections the attorney makes may give the witness clues about the problem with a question so that it can be answered accurately.

It is acceptable to take whatever time is needed to think about or formulate an answer. A witness does not need to feel rushed or pressured to answer quickly, even if the examining attorney is giving verbal or nonverbal cues to that effect.

If a witness does not know the answer to a question, he or she should say so rather than guessing. If a witness cannot remember the answer, he or she should say so, again without guessing. Although it may be embarrassing to forget or not know an answer, the danger of guessing is greater.

In malpractice cases in particular, it is important to keep in mind the difference between probable and possible. Plaintiffs in malpractice cases must prove that it is more probable than not that the defendant caregivers were negligent (as contrasted with a criminal case, in which the prosecutor must prove the defendant's guilt beyond a reasonable doubt). Although anything is possible, something is probable only if it is more likely than not to have occurred or be true. Stated another way, probability means there is at least a 51% chance of the occurrence or that the statement is true. Because malpractice cases must be proved at the level of probability, be alert for questions phrased with the words probable, probability, likely, likelihood, or more likely than not.

A witness should avoid such expressions as in all honesty, honest to God, honestly, frankly, in all candor, or I swear to God. Because a witness already is under oath to tell the truth, these expressions are unnecessary. Additionally, witnesses who use these expressions may create the impression that, unless they preface an answer with one of those expressions, they are not telling the truth.

Care should be taken about prefacing an answer with “I always” or “I never.” Better to say, “My usual practice is…,” or “I typically do….” Similar care should be used when the examining attorney asks the witness to agree with blanket statements. It is a rare circumstance where “always” and “never” apply.

If a mistake is made during trial testimony or a deposition, a witness need not panic. The nonexamining attorney will be alert for those occurrences and will be prepared to correct the problem with later questions.

Witnesses should not allow themselves to be provoked into an emotional response by the examining attorney. Sometimes that is the attorney's intent and strategy, but it is almost always to the witness's detriment to respond in an emotional state.

Similarly, it is unwise to argue with or try to outsmart the examining attorney. This is not to say that the attorney is smarter than the witness. Instead, this is to emphasize that the nurse witness is in the less familiar legal forum, a place where the attorney regularly works, and may be outmaneuvered while trying to outsmart. An analogous situation was depicted in the television show Colombo, in which the homicide detective regularly led the target of his investigations to believe he or she was smarter and able to outmaneuver the detective—to the target's detriment in the end.

At trial, it is essential for a witness to maintain the same demeanor on direct examination as on cross-examination. If a witness appears friendly to the attorney conducting the direct examination but cold and even hostile to the cross-examiner, the jury may perceive this as bias by the witness and lessen the amount of credibility it assigns to the witness's testimony.

Because every answer in deposition or at trial is being recorded by a court reporter, a witness must answer with words, not sounds (eg, mm-hm, or uh-uh). Similarly, a witness should not chew gum or suck on mints or candy because this interferes with the court reporter's ability to accurately hear and record the testimony.

A witness should never take any sedative or tranquilizing substances beforehand as a way to manage pretestimony anxiety. Instead, witnesses should be especially nurturing to themselves the days and hours before testifying to ensure a good frame of mind and manageable anxiety.

Last, but most important, a witness should always tell the truth. The oath administered to a witness is given to impress that goal on him or her. There are different permissible ways to answer any question truthfully, and meeting with an attorney before testifying is almost always helpful in this respect. But truth, not protecting a coworker or an employer, is the ultimate goal of any legal proceeding. Nurses must be true to their own integrity as they step into the legal arena as witnesses.