Welcome, everybody, to our webinar today, called Civil Trials and Hearings, Testimonies by the Clinician, which is being offered today through the IAFN with the OVC SANE Program TTA Project grant. Joining us today is John Kurland from ECWITAS and Jessie Midland from Victim Rights Law Center. We were just laughing about that earlier about acronyms. So welcome, everybody. We're really excited to have everybody here today. And without further ado, I will let John get started with his presentation and he can introduce himself. Thank you. Shay, thank you so much for the handoff. And I want to thank IAFN for giving us a chance to present this content and material today. And I especially want to give a recognition of appreciation for the collaboration with the VRLC and Jessie Midland. It's much appreciated. And I also want to thank everyone who's here to listen to this presentation today, Civil Trials and Hearing, Testimony by the Clinician. And I'm going to jump into the substance pretty soon. However, there's a few administrative housekeeping matters we have to address first. And I'll jump into that part right away. First is the acknowledgement. And what I want to note with this is that what pays and provides for my time to be here and ECWITAS' time to be here are grants awarded by the Office of Victims of Crime from the Department of Justice, U.S. Department of Justice. We so appreciate that support because it allows us to make our work available on as wide a basis as possible. However, the caveat I always want to provide is that with that support, I want to warn everyone that if anything I say today you find disagreeable with you or doesn't sit well with you, you should not necessarily assume that that position reflects any sort of official position or policies of the U.S. Department of Justice or the Office for Victims Against Crime. So some other housekeeping matters is also some disclosures that are necessary. What I want to let you know is that the planners, presenters, and folks who reviewed this content today have no conflict of interest relative to what we're presenting today solely for purposes as an educational activity. Upon attending this course and completing the course, you can get the specified number of continuing nursing education contact hours, assuming, of course, you're a nurse and you're eligible for continuing nursing education contact hours. If you're an advocate, they aren't going to give you nursing education contact hours for free. I also want to let you know about IAFN, that it's accredited as a provider of nursing continuing professional development by the American Nurses Credentialing Centers Commission on Accreditation. All right. So my ideal whenever I present on behalf of EQUITAS is that some people or almost everyone has heard of EQUITAS before in our organization. But it's a big world with a lot of technical assistance providers and not everyone had an opportunity to do so. So I really want to give sort of a short elevator pitch telling you about EQUITAS, who we are, what we do, and how we try to accomplish our mission in the world today. EQUITAS is a nonprofit. We have our brick and mortar based in Washington, D.C. And we're made up of primarily of attorney advisors who are former prosecutors specializing and focusing in crimes such as intimate partner violence, sexual violence, human trafficking, and stalking. With the background and experience as prosecutors in these areas of crime, we try to bring that practice and experience to EQUITAS in the hopes of developing trainings and approaches to best practices that are going to be innovative. In other words, not just the same old, same old, that will be informed. In other words, sustained and supported by research. But also in recognition, especially from our background as county prosecutors and local prosecutors, it's also going to be practical and implementable on a local level, whether you're coming from a very well-resourced large jurisdiction or a small, less well-resourced jurisdiction. So some of the ways in which we provide these services are through resources that are freely downloadable on our website. These can be strategy guides, treatises, statutory and case law compilations, and things of that nature. Training events such as the one I'm doing now, and also in-person training events. And also by being available for consultations through email or our toll-free number on a 24-7 basis. These consultations can involve case-specific issues. Maybe you're working on a case with a prosecutor or an attorney, and there's a challenge to an alternate light source photography you used in your examination. And you want to find out what other jurisdictions have done with that, try to get some sample law, or just brainstorm the issue. We can be available on a case-specific issue on that. Maybe it's a broader issue, such as you're having some trouble getting all the stakeholders in your community invested in multidisciplinary or sexual assault response teams. And that's something we can consult with, too. Even when we don't at Equitas internally know an answer to a question you have, we do try to practice what we preach and maintain a wide network of collaboration with other national partners. And so that's also something we call and rely on to help get the right answer or get you the right answer. So all these resources, consultations that I mentioned, they're free because we're fortunate enough to be grant-supported. You can explore them by going to our website at equitasresource.org. You can also follow us on social media if you want to be updated about new trainings we're providing that may be archived or become archived on our website and new resources we've developed. I also want to sort of give a platform to Jesse Midland from the Victim Rights Law Center, who really helped give a lot of the information and feedback that produced this presentation today. And I want to give her a chance to tell you all a little bit about VRLC. Thanks, John. Great job on the acronyms. I always stumble on them for my own organization. Hi, everyone. It's so great to see you here today. I just wanted to briefly introduce myself. I'm Jesse Midland with the Victim Rights Law Center. My pronouns are she, her, hers. And I direct the Victim Rights Law Center's national TA work. We have OVW-funded technical assistance projects on supporting lawyers representing sexual assault survivors nationally. We also have a relatively new legal advocacy technical assistance project supporting the work of legal advocates around the country serving survivors of gender-based violence more broadly. We are one of the comprehensive campus grantees. And then in some ways, really the most meaningful and rewarding part of the collaborations I do is getting to work with folks like John Kurland and his colleagues at Equitas, who are just fabulous on the criminal prosecution side, with Amy and Shea and Angelita, before that with Kim Day and others at IAFN. And again, just thanks to the funding that John mentioned earlier that IAFN has secured, we are available within sort of certain parameters that the IAFN team can share with you to provide technical assistance. And I will also just coordinate with IAFN. We had a couple of resources that I thought might be of interest to folks. But I'm going to turn it back over to John. I'm going to turn my mic and my camera off. But I'm going to be here in the background. So thanks, and I'm really excited for this conversation today. Great. Thank you, Jessie. So folks, if you signed up for today's presentation and you saw the description, you might have been prepared to hear from my incredible extraordinary colleague, Patty Powers, who is the primary author of this presentation today. Unfortunately, a last-minute emergency came up, and she isn't available to do it. Still, I want to make sure she's credited for the preparation of these materials. And I'm just benefiting from the depth of her experience and expertise in the content we provide today. Any mistakes or deficiencies that occur are due to me, not due to the preparation of materials by my friend and colleague, Patty Powers. And as you've probably determined by now, I'm actually the presenter. My name is John Kerlin. As I've indicated, I work as an attorney advisor with Equitas. I've been an attorney advisor with Equitas for just over five years now. Prior to Equitas, I worked as a prosecutor in Berks County, Pennsylvania, for a period of about 16, 17 years. If you're not familiar with Berks County, it's in southeastern Pennsylvania, known primarily for the city of Reading. As a prosecutor in that jurisdiction, I prosecuted and eventually supervised the prosecution of crimes relating to child abuse and molestation, intimate partner violence, sexual violence, stalking, human trafficking, as well as homicides, a variety of homicides, and things of that nature. Fantastic career, wonderful way to serve my community and work with victims directly, as well as other stakeholders. A great job, and just what's wonderful about Equitas. It gives me a chance to still sort of keep my finger in that world while seeing things on a bigger scale. And get the opportunity to work today virtually with folks like you. So what are our objectives for this presentation today? Well, we're talking about testifying in civil proceedings. And what we're going to be talking about that some of you folks may have never had to testify in civil proceedings. Some of you may have only had to testify exclusively in civil proceedings. Some of you may have never had to testify at all. But really what we want to approach and talk about is we want to sort of recognize the similarity and variations in civil and criminal proceedings. How they can be similar to one another, how they can be distinct, and how you can help prepare for that as a clinician who's been called to testify. And in what capacities you can testify. Zeroing in and focusing on civil proceedings, we want to identify the different types of proceedings in which you as a clinician, which is the intended audience, may be called to testify. And the wide range and the different purposes of the kinds of hearings which you could be testifying in, in a civil context. Or maybe we should say in a non-criminal context. And we also, as I mentioned, we want to talk about your role in different forms and how you can prepare for your testimony. How you can work with the attorney that's calling you. How you can independently prepare for your testimony. And maybe how you can prepare for things like cross-examination, which in my experience can be sort of nerve-wracking or anxiety-inducing for a lot of people who have a lot of expertise in your primary field, but maybe get nervous about court. And so hopefully what we're going to be doing is demystifying that, peeling back the curtain a little bit. So it's something where you can just allow your expertise to shine without the concerns about novelty stepping in. What I do want to suggest and ask is we want this to be as conversational and less presentational as possible. So what I'd ask you to do at any point, if there's a question you have that you want to jump in on, please follow up in the chat window. I don't think you have audio capability. Or the Q&A window. That's something I'm going to be kind of trying to keep track of. I also know my friends and partners are also going to be keeping track of it. If there's something I'm talking about that sort of rings a bell with an experience you've had that you'd like to share about, please do so. And we can probably learn a lot more productively together that way by sort of identifying and building on these sort of experiences you've had. And probably a lot more effectively than just me talking. So the content we're providing, it's meant to be digestible hopefully for someone who isn't familiar with a lot of legal process. Who doesn't really have a lot of experience with court systems and judicial proceedings and what's involved. And is hopefully going to try to be explaining things on that level. And maybe even take a little bit of dive deeper into what some of the theories are in context in which you'd be called to testify. And that's going to be your goal. So let's talk about it. You're being called as a proceeding and you're a medical expert. You're being called to a legal proceeding because of something you did as a medical expertise. And a lot of times your medical expertise can seem like it's 180 from what the legal form is requiring or what you're expected to do. And this can be one of the things that I think leads to sort of this nervousness that witnesses might have. Just sort of the novelty. I bet you everyone here feels very comfortable in your professional field. When you go to work, you're not maybe as nervous when you show up. You don't have that imposter syndrome. But when you get brought into maybe an environment that's not as familiar, such as a legal environment, it can be uncomfortable. Because essentially sometimes, oh, gee, you're in the spotlight. Everyone's putting a spotlight right on you. And that sort of thing can be discomforting and maybe anxiety producing, which I think is probably a natural human proclivity or inclination. But really what we want to talk about is how to sort of reconcile these different areas and get you an appreciation that when you're being called to a legal proceeding, we of course want you to understand maybe what the conflict in this legal proceeding is about. But ultimately, why you're there is to talk about or describe about something you already know, something you know that the attorneys and the courts probably aren't as informed about. If you're an eyewitness to what someone said or something that happened, you have a better understanding of that than people who aren't there. And certainly if we're going to be talking about medical matters, while lawyers may try to educate themselves up as much as possible in a lay capacity for a specific issue in a case, you've probably forgotten more medical expertise than most of the attorneys have ever learned or remember. And so you're really going to be the experts in these fields. And ideally, we want you to have the same sort of comfort or confidence that you would have as you show up for a shift of work and an appreciation of maybe what's happening in the legal field, even if the attorneys aren't explaining it. So with the idea of, hey, look, an informed witness is usually going to be the most comfortable witness. An educated witness is going to be the most comfortable witness. What we want to talk broadly are the types of different legal courts or trial courts in which you could be called to testify in, in which your testimony could have something relevant or revealing about a fact at issue or at a dispute of issue. Now, the initial sort of division we're going to be talking about are going to be civil courts or criminal courts. Criminal courts is going to be when someone's charged with a crime, they have to be proven guilty beyond a reasonable doubt. And your testimony as a professional may be relevant in some capacity for something at issue. Either maybe what a patient or a victim had said, maybe to injuries you observed or things that are relying on your medical expertise or background that aren't as apparent to a lay person. A civil proceeding is a lower threshold of proving than a criminal proceeding. But essentially what happens in a civil proceeding is someone is saying that they were wrong and that they deserve to be compensated for that wrong in some capacity. And there's still an issue of proof of trying to show what happened. But here in a civil proceeding, the state, the government, isn't a party to that. This is between two private parties. The person who says they were harmed and the person that they say did the harming. In other words, the plaintiff is a person who says they suffered some kind of injury. And the defendant in a civil person is a person accused of causing that injury. This injury could be physical. It could be reputational. It could just be something they did was wrong. In a criminal case, there is no plaintiff. It's really the state, the government, that has a criminal case against a person accused of violating a criminal law. So in the criminal case, it's going to be more the state, or if you live in Virginia, Kentucky, Pennsylvania, or Massachusetts, the Commonwealth and the defendant. So there's only one private party in a criminal case, and that's going to be the person charged with committing a crime, alleged to have committed a crime, whatever that crime may be, a violation of a statute. Juvenile proceedings, they're a creature in every jurisdiction in the United States. And really what the purpose of juvenile proceedings are to present a form that sort of can be similar to criminal proceedings in the sense, hey, look, a juvenile is suggested to have done something that would be a violation of a criminal law if they were an adult. But look, with juveniles as a society, we have different interests than we do with adults who commit violations of criminal law. With juveniles, while on some level, yeah, you want to hold them accountable and you want to make sure there's some justice. We also, in a juvenile proceeding, recognize and prioritize the rehabilitative need on that juvenile. Ultimately, the goal of juvenile proceedings is to hopefully make them a law-abiding person. So for that reason, juvenile proceedings might have a lot of privacy and concerns and protections that don't exist as extensively in a criminal case with an adult defendant or in a civil case. And the reason why there's gonna be so much privacy concerns in a juvenile proceeding is because ultimately, if we're able to rehabilitate or reform the juvenile accused of violating the law, we want them to be able to protect or salvage their reputation. A military court or military justice court, what's involved there is essentially when a person in the armed services or one of the armed services is accused of violating a provision of the military code and they're entitled to a trial to decide what the punishment might be, whether the discharge might be and what happens. And these can be similar in nature as to in procedure or conduct is what might be happening in a criminal court proceeding. But this is all according to the military code of justice. And if as a witness, you might be called on to do that. The other kinds of trial courts that you might be involved in is tribal courts that occur in Indian country or in tribal territory. And there's a lot of different tribal laws. And there's some complicated facets I'm talking about about overlapping jurisdiction with tribal laws, overlapping jurisdictions with both federal courts and courts of the United States government and to some degree with state courts too. But essentially tribal courts is when someone is accused of violating tribal law, a proceeding in that form to determine. And of course, overlaying all these courts, especially overlaying the state courts in both civil proceedings and criminal proceedings are gonna be federal courts because while at the same time there's gonna be a state criminal code, there's also a federal criminal code. And if you're accused of violating a federal criminal code, the federal government can choose to prosecute you. They can choose to prosecute you simultaneously with a state court, but that doesn't usually happen. Or they can assume a prosecution instead of the state. And then those proceedings have to be determined. And of course, if it's a appropriate question and appropriate amount involved, people can also be sued civilly in federal court, especially if there's an issue that's gonna be crossing state laws. So that's really a summary of what can be really complicated issues about jurisdictions and types of trial courts. And even then we're not being exhaustive of all the different types and kinds of proceedings that you as a medical professional could be called to testify in. Because the other things where you could be called to testify in, and especially sort of diving deeper into sort of varieties or subcategories of these civil proceedings, are gonna be other proceedings that might not be in formal court, or sometimes might be in lieu of something happening in a formal court of law. One of these matters are gonna be arbitration hearings. Arbitration hearings are something where, instead of going through a civil proceeding right here, which can be pretty expensive and involved for all parties, the people who have a dispute, instead of having their case be resolved in civil court, can decide to essentially have a referee decide what happened in an arbitration hearing. They still have to present their case and prove it. The burden of proof is gonna be only by preponderance of the evidence. I'll talk a little bit about what these burdens of proof things mean in a minute. But these arbitration hearings, the hearing master or the, essentially the person deciding the case in an arbitration hearing is more often than not gonna be a lawyer, not an official judge. And this is something they do privately. And the advantage for folks who hear arbitration hearings is that justice can be quicker with arbitration hearings. So sometimes there's an incentive for both plaintiffs and defendants to have their disputes settled in arbitration hearings, especially if as part of entering into an agreement, they made a, there's a clause that's saying, hey, look, if we have a disagreement, we have to have this settled in arbitration. The other kinds of hearings that can exist are gonna be Title IX hearings. Title IX hearings are gonna be happening in a campus form. These are on some level, well, I would call them administration hearings, but the Title IX hearings, they certainly are mandated by administrative law, but the body conducting these Title IX hearings are gonna be essentially bodies, neutral bodies intended to be established by a university or an educational institution. And these are meant to determine violations of, or whether someone's rights have been violated under Title IX, which guarantees inequality that you can't be denied equal access to education because of gender, because of sex, or because of gender identity, I think is the latest reading of it. So what can happen at Title IX hearings, the stakes are involved, is if you're, if you're someone who's accused in a Title IX hearing, what could happen is you could be suspended or expelled from the educational institution. And that can be one of the remedies to make sure the person that was harmed by it is guaranteed equal access to education or isn't denied equal access because of their gender and or sex. So mediation hearings, this is sort of similar to arbitration hearings, they don't require either party to approve their case. And the other thing that can happen are administrative hearings where you might be called to testify. The burden of proof here is gonna be one of the lower or lighter burdens of preponderance of the evidence. Administrative hearings might happen where maybe if someone is given a license by the state, such as if you're given a nursing license, and if someone were accused, or if a nurse were accused of being a wrongdoing, and their license would be at stake, that would be determined in an administrative hearing. If someone was a doctor, that'd be an example of an administrative hearing. In other words, there's a government department or agency that resolves the dispute. So you've heard me mention a little bit about different kinds of burden of proof, or certainly I was referencing them on the prior slide. And this is sort of language that can be used pretty reflexively by a lot of lawyers and attorneys. Without an appreciation, there might not be the kind of language that other people use in their daily life. And when we think about sort of defining burdens of proof in the legal world, this is something that really all lawyers know, but it's really sort of hard to pin down to an exact definition. What a burden of proof is meant is it means a standard or hurdle that you have to get over to show something is proven. So if you're the state, if you're the government, and you're in criminal court, and you've charged someone with committing a crime, you have to prove they're guilty beyond a reasonable doubt. If you sue someone in civil court, you have a much lighter burden. And why? Because the stakes aren't as high. Someone's liberty and freedom isn't at stake. So because of that is if you sue someone in a civil proceeding, you only have to prove by a preponderance of the evidence. And sort of a middling point between these two standards of very high proof beyond a reasonable doubt, and the much lower proof by a preponderance of the evidence is gonna be proof by clear, clear, cognitive, and convincing evidence. Now, what's meant by proof beyond a reasonable doubt? And this is where it gets sort of hard to pin down, just like it's hard to pin down by proof by preponderance of the evidence. Because the level of proof, it's not simply a mathematical formula, like what percentage is it likely this is true? It doesn't quite work that way. It is something where we have to apply our judgment to decide whether it's satisfied. But proof beyond a reasonable doubt, some jurisdictions have variations in how it testifies. But proof beyond a reasonable doubt means we're pretty, it doesn't mean proof beyond old doubt. We don't have to know to a level of mathematical certainty. We don't have to be 100% sure, but we have to be using our applications, our faculties of reason based on the evidence we're given to look at whether it's testimony, whether it's exhibits or whatever the body of evidence is that we're given to review is that you know what happened. You feel comfortable knowing what happened, even if it's not beyond old doubt. Proof by a preponderance of the evidence is probably a best visual I've ever heard to describe it is if you look at a balancing scale, or some people might say those scales of justice. When everything is even, the scales are balanced. If one of those scales tips ever so slightly, that heavier slide has met a burden or threshold of a preponderance of the evidence. In other words, preponderance of the evidence means a threshold of evidence that's something that makes something more likely than not to be true. Preponderance of the evidence is a much lighter burden. Proof by clear, cognitive and convincing evidence, that's sort of a middling standard between these two, which is really hard to define other than in comparison to these other two standards of beyond a reasonable doubt and proof by preponderance of the evidence. And maybe the best way to describe clear and convincing is it's more than a preponderance, but it's less than a reasonable doubt. And an example of the kind of proceeding where someone might wanna have to use clear and convincing evidence is certainly if someone's being determined whether or not they're a sexually violent predator, that's often after they're convicted of a sexually violent offense, that's usually going to be a clear and convincing evidence. So one of the things is my understanding, and I'll ask Jesse to jump in here, is if for folks following Title IX laws, and there's been some tension and variations on it between administrations right now, but essentially the standards that were approved under the prior administration from the Department of Education was Title IX proceedings have to meet a clear and convincing evidence standard before we can find that someone's rights were violated under Title IX. And I'm very much simplifying Title IX. What can happen though is that Title IX is often the floor that educational institutes that adopt. It doesn't necessarily have to be a ceiling. So schools can sometimes adopt a lower standard, which would be a lower preponderance of the evidence standard. So let me move on to the next slide. So here's the different kinds of hopefully legal contexts in which you might be called to testify. And certainly if you're called to testify, it's a fair question for you as a potential witness to ask the attorney, gee, what kind of proceeding am I being called for? What do you need me to testify for? And hopefully what we've just talked about is gonna give you a little bit of context to explore or at least open up some other questions with this lawyer who needs you as a witness. But what areas can you have potential testimony based on caring for patients? Well, the care you've delivered a patient could be relevant to a civil or criminal proceeding. And the care you give to a patient, what kind of care? Well, it could be the care you administered, any observation of injuries. If you're a sane nurse, the sexual assault forensic exam you administered, the process of doing that, the procedure you used to do that but also some fact-based information such as any statements the patient may have made, what their demeanor was, things they told you could be really relevant. And certainly because a lot of times if you're carrying someone or a patient who's been a victim of sexual assault, that can give rise to criminal proceedings but that may also give rise to a civil proceeding. The patient who was sexually assaulted, not only are they victim of a crime that's a violation of the state's laws but it's also a wrong committed against them. And if they want to do so, they could sue the offender civilly and they could sue that person civilly and meet a much lighter burden of proof because the criminal proceeding is gonna be beyond a reasonable doubt whereas a civil proceeding is only gonna have to be by a preponderance of the evidence. Other areas where you might have to be meeting a patient care and this is something you might be familiar with is if a patient sues the medical provider and there's a malpractice complaint, maybe it's an allegation against you directly, maybe it's in relation to care provided by other medical professionals that are in your institution or in your agency and your testimony and your observations of what medical care either you provided, your institution provided or your colleagues provided is gonna be relevant to figuring out. Now a malpractice complaint by its very definition, that's gonna be civil in nature. Maybe there's gonna be some sort of care of a patient that's gonna result in an administrative proceeding. Maybe someone was, the care was so bad someone's medical license is at risk and there has to be a procedure before that medical legal procedure or legal proceeding before that license can be suspended or revoked. Maybe there, and that could be involved in administrative proceedings. Other area too is most of you here, if you're medical providers, I think in almost every jurisdiction, you're gonna be a mandatory reporter and as a mandatory reporter, essentially while the specifics under your jurisdiction are gonna vary, you should certainly check with local authorities and your own local training before you rely on it. But generally if a child, if there's a basis to believe a child patient or someone you contact with has been a victim of abuse or neglect, there's an affirmative duty to report that to Child Protective Services, to Department of Human Services, to something for that nature. This can be co-occurring with a criminal case, a criminal case relating to child abuse. But it can also be child protection proceedings or child removal proceedings or custodial hearings that are independent of a criminal case. And what's involved with this is if there's a caregiver who is suspected of having abused the child or neglected the child, and there's a question about placing the child in foster care, or maybe even terminating that parent's rights, parental rights to the child could be an issue and testimony is needed before that can happen. Because of course, removing a child from their parent's care or terminating a parent's rights, parental rights with a child is something that the government just doesn't get to do by fiat or because they feel like it. There's hoops the government has to jump through independent of any sort of criminal case. Child custody proceedings, two parents are divorced or going through a divorce proceeding, and maybe some medical care given to a child is relevant to a custody issue or custody fact the parents trying to make. Maybe you're gonna be called as an expert witness in the medical field, or maybe you're gonna be called as a fact witness based upon your professional work. And we're gonna explore a little bit deeply later on about these distinctions as being an expert witness as a medical provider and being a fact witness as a medical provider. So let me, I've been talking here for about 37 minutes. Let me just sort of stop and pause. I know we've got 22 folks, 22 people here. What I'm saying is, is it digestible to everyone or everyone following so far? Is it too high level, not high level enough? Any sort of feedback or is it essentially being grasped and grokked okay? All right, well, I don't see any objections, so I'm gonna keep on proceeding, but I'm keeping an eye on the chat window. You probably saw my eyes scrolling over here to double check. So I think it's going okay. So similarities between civil and criminal proceedings. How are these two types of proceedings the same, especially in the context of you as a medical provider? Well, one, I mean, while you can always volunteer to testify in a proceeding, but usually the typical mechanism that's gonna get you in court is gonna be a subpoena. Whether you're being called to testify in a civil proceeding or whether you're being called to testify in a criminal proceeding. And a subpoena is essentially, it's not an invite, it's an order from the court requested by one of the parties or the party who issued you the subpoena, either the government, the plaintiff or the defendant for you to come and testify in court. Now, even though it's an order of a court, a subpoena really gives you a couple helpful administrative mechanisms too. One, if you need proof you're needed in court, a subpoena is a pretty good mechanism to do that. So what's gonna happen is if you need off for work that day, if you can't make it to work that day, if there's other sort of schedule conflicts, you can use a subpoena to show that you're needed that day. A subpoena is hopefully also gonna give you a guide to scheduling. Oh, this subpoena tells me I'm gonna be needed at this day and this time to appear in court. However, I do wanna caution you the nature of how subpoenas work. And when attorneys usually request or issue subpoenas, they're doing so on the basis that it's safer to issue it in the event I need someone rather than being caught without having issued one. So sometimes a lawyer might subpoena you for a proceeding that might only have a 20% chance of proceeding on a given day, but the lawyer has to send the subpoena just so their butt's covered. Sometimes they might issue a subpoena where I don't think I'm gonna need you as a witness, but in the event I do, I need to keep this subpoena handy. So when you get a subpoena from someone and you see the date on it to appear on such and such a day, on such and such a time, really the best thing I can recommend is just a sort of practical tip, contact the attorney whose name indicates they issued the subpoena. Hey, I got this subpoena. Can you let me know what's the likelihood of me having to testify that day? Am I gonna be needed that whole day? Is there a certain period of the day where you think you're gonna have to call me? How come you subpoenaed me? It's perfectly okay that you open up that communication. Now, ideally, every time a lawyer issues a subpoena, they'll make some contact with you and give you a heads up. And that's certainly the hopeful professional thing to happen, but that doesn't always happen. So there's nothing limiting your ability to contact the attorney's name on that subpoena and sort of get it fleshed out. So, and one of the reasons you probably wanna contact the attorney who issued the subpoena to find out why they needed you is to find out if they're trying to obtain maybe any privileged or confidential information. Maybe if a patient told you something with an expectation of privacy and medical privilege, you need to know that that's what they're asking about and that that's not something that sort of confidentiality expectation isn't something you can violate unless you know that it's waived. So it's really important, I think, you contact the attorney too to find out what exactly they want you. Trying to find out things the patient said, that might fall under privilege. Trying to find out treatment you administered or what you did, that's generally not gonna be privileged. That's just gonna be the care or what you observed or administered. So the other thing that's gonna happen too with a subpoena is you might have opposing counsel contact you or try to reach out to you. If you're being called in a civil proceeding, you're subpoenaed by the plaintiff's attorney, the defense might try to contact you or reach out to you. Now, what you have to remember is just in a civil proceeding, because a plaintiff has issued your subpoena, the plaintiff's lawyer is not your lawyer. The plaintiff's lawyer has no obligation or no duty to you. Of course, if a defense attorney, they're not your attorney. So if the other side or the other counsel wants to talk to you, there's nothing that prevents you from doing that. And if you have your own counsel, you might want that person to let you know. If you're working with the side that issued the subpoena, you might wanna give that side a heads up that the other side wants to speak with you. But avoiding an opportunity to talk to the other side probably isn't always wise, because if you refuse to talk to them, that's probably something that's gonna be brought up when they're asking questions and make it look like you have an agenda and you're trying to hide something. So if you want some protection, just to make sure it's not misrepresented, it's probably good to have a witness, let the other side know that you were called. So subpoenas, they can be issued by the court through an attorney or from the attorney directly, gives you information about the title of the case and the court form in which it was being heard, designated time for testimony. Part of these subpoenas, and you wanna read the fine print carefully, it may also include a requirement that you bring or produce records that might've been involved within treatment of a certain physician and that you bring those with them. Some subpoenas, especially in a civil context, might also require you to appear for a deposition. Sometimes you might get a independent subpoena to appear for a deposition, other times a subpoena for a civil proceeding might say, hey, look, you have a subpoena to appear for trial and prior to that for deposition as well. So responding to the subpoena, same thing we sort of hit on and addressed already, check in with the attorney who issued the subpoena. If you've got a conflict in scheduling, whether it's gonna be a work conflict, whether it's a pre-scheduled vacation, something of that nature, let the attorney know immediately about whether there's a conflict. Maybe there can be alternatives arrived at, maybe there could be some sort of video recorded deposition, a lot of alternatives. Hopefully an attorney is gonna be proactive about reaching out to you to prep, but if not, it's totally appropriate for you to reach out the attorney to say, hey, look, what do you need me for? Let me find out the scope of why I'm needed so I can focus this. If responding to a subpoena for a deposition, contact the attorney for your hospital. Obviously that's gonna probably be useful because usually if you're being required to appear in a deposition, it's because your agency, your institution is being sued. So prudent thing to do is to contact the attorney for your hospital and hopefully deal with it through them. So what are depositions? Well, depositions, they're unique in most jurisdictions to civil proceedings. There are a couple of jurisdictions, Florida, Ohio, Vermont come to mind where depositions can be used in criminal contexts, but really depositions are a way for the parties, for the plaintiff and the defense to figure out what a particular witness is gonna say before trial. So that if this witness is gonna be called at trial, both sides know what this witness is gonna say. There aren't any surprises in court. So in other words, depositions are a tool for both plaintiffs and defendants to learn about a case, to get discovery about a case, to learn about witness testimony and obtain additional information. Not everything you're asked about in a deposition is going to be an area you're necessarily asked about at trial. Because really in a deposition, the strategy is really twofold. One, the attorneys are seeing if they can sort of get your testimony locked in to a certain version or a certain account. The other thing that might be happening in a deposition is the party's trying to learn about the case. So they might be asking you a bunch of questions, trying to follow down every thread and not all the threads might necessarily be productive. So sometimes depending on the extent of your deposition, if it goes well, some attorneys might just present your deposition testimony at trial in lieu of calling you as a witness. But again, what you need to know is the attorney requiring your deposition, they're not your attorney. The plaintiff's attorney is the attorney for the plaintiff, the defendant's attorney is the attorney for the defendant. So here's how a case works. And when there is a trial and this sort of gives you a context of sort of where you can fit in. Before, usually if you're being called as a witness in a proceeding, you're gonna be called in really in just one juncture of this point when there's witness testimony. And more often than not, you're not gonna get to hear other witnesses testify. So you don't really have a big picture of what's occurring or what's happening in the case or where your part of the testimony fits in on the whole. But generally, just to sort of give you context about what's happening during a trial, and this is true whether it's criminal or civil, is the case is gonna begin with jury selection. And this is usually when the subpoena date says your case begins, jury selection. And this is just what attorneys do to pick the people who are gonna be sitting in the jury and deciding the case, deciding what's proven or what's not proven. The next thing that happens are opening statements. And that's something each side, both the plaintiff and the defense present to the jury about what they contend the evidence is gonna show. In other words, it's sort of like a preview guide, a roadmap sort of gives the jury context so they can hear when they hear the different witnesses, the jury is gonna know where that witness fits into their overall poll. An opening statement might also be an argument, especially from a defense perspective about what the evidence is never gonna show or fail to show because the plaintiff, just like the government in a criminal case is trying to prove something. The defense in a civil case, just like in a criminal case, is basically trying to show how something has failed to be proven. Not necessarily innocent or not liable, but really just something how it's failed to be proven. The next components are gonna be witness testimony and expert testimony from both sides. Then after both sides have had an opportunity to present the evidence involved, the attorneys are gonna argue what that evidence means and why it shows someone is liable or why the evidence failed to prove someone was liable. And then a jury takes the case away and decides what was proven or what was not proven. Now, there's really two kinds of witnesses that can testify that we referenced. One is a fact witness and one is an expert witness. And certainly in cases of nurses and forensic nurses, you might be testifying as a combination of a fact witness and an expert witness. But a fact witness is really the more typical kind of witness. This is someone that's called on to provide information in a medical context about care provided to the patient, observations that were made about the patient, what sort of care was done, what readings and medical readings were said. If you're testifying as a fact witness, you're not really qualified as an expert because you're not giving an opinion, but you still might have to talk about your professional qualifications to perform work for the patient. In other words, it's not expected that a lay person knows how to administer something as simple as a blood pressure reading. It is assumed that the professional qualifications of a nurse does know how to do that. But if you're testifying as a fact witness, the admissibility isn't usually dependent prior to trial. It's not typically gonna be required. A fact witness, generally speaking, can only testify about things they observed with one of their five senses, their smell, their hearing, their sight, et cetera. That's what a fact witness gets to talk about, things that they observed with one of their five senses. They don't get to talk about their beliefs, their opinions, or their theories. However, the law and legal proceedings does have space for a witness that can give their opinions, their theories, and their educated conjecture. And that's for an expert witness. Someone who's qualified as an expert witness, and we'll talk about what gets you qualified as an expert witness in a moment. In a medical, if you're being testifying as a medical expert witness, you can include information about care provided to the patient, opinion about why you provided this care was appropriate, but not this other care, what you can determine or learn from a patient's medical records, and how to form an opinion for treatment or care. But to testify as an expert witness and your opinion about what happened to the patient, what was medically wrong or not wrong with the patient is gonna require qualification as an expert witness. In other words, the court will have to recognize you as an expert witness, and can sometimes involve a prior hearing. Now, forensic nurses, you're at this intersection of expert and fact witness. And this is a good quote from IAFN from back in 2009. Role of forensic nurses, it's a practice of nursing when health and legal systems interact. And that's where the word forensic comes in. This intersecting testimony in civil proceedings can be related to allegations of physical and or sexual abuse, and testimony in criminal proceedings with charges based on it. So really as a forensic nurse, you're really gonna be at this intersection of both civil proceedings as well as criminal proceedings because a victim of sexual assault is gonna be sort of involved with both of these proceedings. So getting this overview of trial and trying to understand the differences between civil and criminal proceedings, first thing that's gonna usually happen as we referenced earlier, is gonna be a jury selection, unless it's a case heard just by the judge, which is called a bench trial. Then there can be an opening statement. But in criminal cases, a criminal defense attorney can waive their opening statements. Then there's gonna be presentation of evidence by the plaintiff's side. And the reason why they present evidence first is because they have the burden of proof in a civil case. They have to show things by a preponderance of the evidence. So if they don't do anything, then no evidence is presented and no burden can be sustained. Just like in a criminal case where there's that higher burden beyond a reasonable doubt, the prosecution is gonna have to present evidence first. Then what happens is there can be presentation of evidence by the defense that either rebuts or minimizes the evidence that's presented by the plaintiff. In a criminal case, the defense doesn't have to present any defense under the constitution and also the idea of burden of proof. Then there can be closing arguments by both sides. And then sometimes in some jurisdictions, there can be a rebuttal or a response to the defense closing. And then we get a verdict. So what are important considerations for clinician trial preparation? If you're being called as a witness, what are some things that you can do to prepare? Well, one thing, and this can be a task, is updating your curriculum vitae, your CV. Curriculum vitae, it's Latin for course of life. And what is meant by a CV or really envisioned by a CV is something a lot more extensive than maybe what was done or completed with just a resume. A resume is more an advertisement you're giving about yourself as a prospective job applicant. A CV is something meant to be a lot more exhaustive about all your relevant professional experience. And that means sort of diving in and detailing all your education, all your clinical experience, the training you received. If you have a license, giving a description about what was required to receive that license, how many continuing education credits you have to receive to maintain that license, things of that. If you've previously been qualified as an expert, including reference to the dockets or the criminal cases or the cases where you've testified as an expert. When you have a CV, you should be prepared for detailed questioning about the content of your CV, either from the plaintiff or from the defense attorney and assume that your CV, when you give it to one side, the other side is gonna get it, that it's gonna go out in discovery. But like everything, when you testify as a witness, you don't have to memorize your CV just like you don't have to memorize your medical reports. You can have copies of these things on the stand, whether it's medical reports or a CV. And these are things you can use to refresh your memory. But you just have to make a note of when you're using either a copy of your CV or a medical report to refresh your memory. Just say, oh yeah, I don't remember what year that was. I took that course. Is it okay if I look at my CV to make sure my memory's right? And you can do that and use that to refresh your memory. Same thing with the medical report. Oh, I don't remember what the patient's weight was on admission. You're okay if I look at these reports to just refresh my memory. That's something you would do in real life. You're not a robot. You're not a computer. You're allowed to do it on the stand, of course. As part of the preparation for any sort of testimony, be it civil or criminal, you wanna review the medical record regardless of whether you're being called as a fact or expert witness, just to make sure you're familiar with the case, refresh your memory. If you're being called as an expert witness for medical opinions, that's not something that an attorney should just throw on you as a surprise. That's something you should have an opportunity to be prepared for. And if you're testifying as an expert witness, prepare to provide information about the facts or data you provided and relied on to form an opinion, including relevant literature. Now, one common area that I think a forensic nurse might be called on to testify is does the absence of genital trauma mean that a sexual encounter was consensual? And the answer is no. And the reason when you testify to that and are able to testify to that, you should be able to back up not only based on your experience about why that is correct, but also based on all the research and studies that demonstrate that as well. So you can back it up and be prepared to sustain that. Photographs are involved, determine whether they have been or may be released pursuant to applicable protocols. Obviously, there's gonna be some photos that are not appropriate. There might be other photos that are really gonna help you explain your testimony a lot more directly or more easily. The lawyer might not understand what photos are gonna help to do that. You might not even know what the lawyer wants you to describe. So maybe a good practice is to go over usable photos and have a discussion with the lawyer about what is it you want me to explain? Oh, well, this photo helps me explain that point pretty well and use these photos so that when the jury or judge is listening, they have some sort of visual component might make your job a lot easier to explain what you observed or didn't observe as the case may be. Find out like what discoveries already been provided, what the attorney knows on both sides. If there's legal counsel in your medical facility, you're probably gonna be better off consulting with them or finding out if you should consult with them. And don't be afraid to ask the attorney why you're being called to testify. So one of the questions I wanna ask, especially while we have a technical capability here is finding out from folks here, have you testified as a medical expert in a civil or criminal trial? And if you could respond to the poll as yes, no, or unsure. And then we'll wait a couple of minutes until we get some results here. All right, so we have our results. So 62% of our audience here have never testified. The one person is unsure. And we have four people who have testified. So using the chat function, if possible, the four folks who have testified, could you talk about your experience or experiences testifying? Was it positive? Was it negative? Was it as bad as you thought it was going to be? Or easier than you thought it would be? Tell us a little bit about the experience you had testifying. Unfortunately, we made this poll anonymous. So I don't know which are the four people who did testify. So I can't lock you in and put you on the spot. Camille, thank you so much for sharing. Easier than I thought it would be. And that's usually, I think that's a pretty common experience. I think the anticipation of it can be more nerve wracking than the actual doing of it. Gretchen, it was a criminal case. And to me, it is more intimidating than a civil case. Gretchen, how come is it? Is it because the stakes are higher in a criminal case? Because the attorneys are more intense? Or another different reason? So, well, let's let's let me keep going here I was face to face with the defendant Gretchen that's a great point because you actually get to see the offender in court, and they're there. And Carolyn wrote in my experiences the cases were successful one settled immediately after my testimony was uncomfortable to be challenged about my educational path, which included starting my career as an ADN and ending up with advanced degrees I was challenged by the defense, sorry I can't get my mic to work Gretchen that's okay the I don't think that we do have my capability. And that might assume that, look, whatever your background or experiences and Carolyn. If you came into the courtroom with, with, without that background. I bet you the line of attack a defense attorney or the other side would have done is say well look you don't have any practical experience you just have this credentialed experience. And with your background, it looks like the attorney did another route. Well, wow, you, you only got your credentialed experience later in life and so that doesn't account. Part of the other side's job is whatever they can do is try to poke holes on it and so the good lawyer, from their perspective is when they get lemons are going to make lemonade. So, in Carolyn's case if she has a really sort of inspiring story about hey look I started out here. I worked my way up to these advanced degrees, rather than that being as a testimony or credibility to your work. They might try to frame it otherwise and of course, whatever your background or whatever your path is is just to have confidence in your expertise. Like you do at work, and appreciate your lane and appreciate the scope of your expertise in the lane of your expertise, which is a good segue to being talking about expert testimony. Now we talked about qualifying as an expert and being an expert witness what does that mean well the general rule is, is that a witness they can only testify to things they observe they can't testify to their opinions or theories or things of that nature. And there's an exception to that like there is to a lot of things in the law. And one of the exceptions is, is, if you're someone who by, by virtue of your extensive knowledge your extensive skill your experience your training, and or your education. You can testify to an opinion or you can testify. Otherwise, in other words you can educate people. If that expertise is something relevant to an issue in front of the jury and if it's based on sufficient facts or data. So this is really what's what's happening is there's a lot of things that your expertise gives you that your background training and experience gives you that in context and information and understanding that's not available to the average person on the street, but you do have by virtue of your training and experience. So the proper subject of expert testimony is going to be something beyond the common Ken and understanding of the average juror. And that might seem some a really weird way to phrase it like what the heck do they mean by be on the common Ken and understanding of the average juror, and my common can it's it's from the Scottish phrasing means knowledge beyond the common knowledge and understanding of the average juror but we really don't update the language, partly because it's so melodious so we stay with the phrasing of common Ken and understanding of the average juror. So for instance, if I wanted to find out about a manner and cause of death, being able to understand that information from an autopsy and form professional conclusions about those subjects is something that's going to be on the Ken and Ken and understanding of the average juror. I'm going to call a medical examiner or forensic pathologist to testify to those sorts of things. If I'm trying to explain how a chemical test determines whether a substance is a controlled substance, like cocaine or marijuana or what have you. The performance or analysis of these chemical tests is beyond the Ken and understanding the average juror so I'm going to get someone with training and experience who can testify to these tests that are done. And similarly, with a lot of medical issues that you're dealing with in your daily practice and daily life and with victims and patients. So the examination things you do are going to be beyond the common Ken and understanding of the average juror, but it won't be to you because of your experience and because of your training. And really the simplest sort of example is is when attorneys are asking you the presence of genital trauma. Why is that in your exams why it's can be consistent with non consensual sexual contact, or if an attorney is asking you the absence of set of genital trauma why it's not inconsistent with non consensual sexual contact your expertise your training can give you an understanding on that that's not available to the average juror and you get to explain that to the average juror. So, really, the threshold or putting it another way of whether you get to testify and as an expert test witnesses. Is your testimony on this expert issue is it going to help the jury understand the evidence and determine a fact and issue and certainly when we're talking about the presence or absence of genital trauma, and the significance of that. Your medical testimony can significantly help the jury understand the evidence and determine a fact, an issue whether there is a non consensual or forcible sexual contact. But the second issue is, is the expert qualified and how do you get over this qualification threshold. So in order to ask questions about what the presence or absence of say genital trauma means we got to get your qualifications in the record and this is something that should be done in preparation with the attorney that's calling you are trying to introduce your testimony as an expert witness. So I'm going to be sort of getting on the record asking you questions in a really sort of simplified form is, tell me about your training, what education have you had. What education did you receive to work as a nurse, can you talk about what was involved in completing that education what you had to do to accomplish that. How many patients have you seen how many patients have you treated and work with how many treatments of patients have you observed. How many patients have you heard of specialized training as a forensic nurse talk about what's involved in that. How many times. What's involved in that training and discussing these sorts of questions. That's really going to help establish the baseline of your knowledge for these matters, being far above the average juror the average person upon on the street. Explaining why, why you know what you know. And this is something and I mean I think folks you might get nervous about this and tense about it. But if you were talking to maybe you're at a barbecue, or something like that and your cousin or neighbor or something asks like, Oh, I heard about that case and they didn't find any damage so they know she wasn't right. And you can help that person understand, gee, why that's not true. And you could use your expertise to help that person understand and that's effectively you're sort of the same thing you're doing as an expert witness. qualifications can be established, certainly one prong, or way that they can be established as through as an on an academic basis. But that's not the exclusive basis of that can establish expert qualifications because there's also professional criteria that can do it as well. And this includes just experience time working in the field. responsibilities you might have the journals and documentations you read the ongoing professional training you received the professional affiliations you maintain such as with IAFN, and also of course critically previous occasions where you might have testified as an expert. So expert testimony it often involves here's the pattern when you're on the stand. It begins with direct examination, and this is more dear, this is the more dear is the question and answering process to establish your qualifications and expertise. This is conducted by the party calling the witness. And then after your expertise is established non leading questions about the subject matter involved. Cross examination is conducted by the opposing party. And this is really anything that's bearing on credibility. A lot of times on cross examination there might be a tendency to be nervous or maybe defensive. But you want to sort of trust that basically the things that that are happening on cross examination they can be rehabilitated or corrected during redirect, which is conducted by the original party that called you. So you want to patch up the questions or areas that were explored on cross examination or give context to. Now of course what can happen during any of these stages direct cross redirect or recross examination is one of the two sides can make an objection. Stop your testimony stop talking and wait until the judge tells you you can rule or rules on the objection or tells you you can answer. And if you're not sure what happened you can the judge might say a ruling, you might say overruled might be sustained. The back and forth banter about the nature of the objection might have gotten pretty involved. You can ask for clarification from the court, I'm sorry, can I answer the question. What you can even do is if the argument became so involved, you forgot what the original question was you can ask, hey, can someone refresh my memory what the original question was, and that's perfectly acceptable to do. Now the other fact I want to point you out to his basis of an expert opinion one of the things you get to do as an expert, is you can rely on reports, even if they weren't prepared by you and maybe they are prepared by other nurses, other medical providers or doctors. So long as those port reports you use to form conclusions or opinions, there are things you regularly rely on in your field. And this is something you probably do every day in your professional life when you go to treat or work with a patient. You want to see what other people have seen that patient what they observed and what they did. And you use that information, in part, to form the strategy for your own plan of care or basis of care, or to continue a plan of care. And so this is what the rule allows you to do. If you're preparing for a cross examination with an attorney. What you want to do is sometimes that you have an opportunity to review and any defense experts report. If there is no defense expert attorney should focus on the evidence and the defense theory of the case so ideally if they you want to know what the defense attorney is going to do with cross examination the attorney that called you should be able to tell you what their theory of the case was and hopefully that's going to inform the question. If the defense attorney is going to be using other information, other reports, other treatises or medical logs. Hopefully you're going to know that ahead of time. This is why depositions can be sort of useful. Because with questions from a deposition, you can sort of anticipate what different areas maybe a defense is going to want to be going on a trial, and it can give you a way to sort of think about and address it and prepare it in a lot of ways as a defense explores those same options. And so once you sort of identify areas that are going to be cross examined about it there might be a strategic choice to sort of short circuit it by exploring these areas in direct examination sort of taking the thunder and momentum away from the defense. And so sort of soften the impact when these areas are developed on cross. So effective testimony, I mean first of all you want to be consistent with who you are. And ultimately what you what you want to do and not put on a personality or persona that's not you. But some good baseline tips that I think can be followed is focus on and answer the question being asked, listen to the question. Don't be anticipating the rest of the question, listen to the question. Be clear on what was being asked and a lot of times an attorney might screw this up because they're thinking faster than they're talking or talking faster than they're thinking. Ask for the question to be repeated or clarified if you can. You're going to get asked a lot of leading questions on cross examination where the attorneys really trying to only give you a opportunity to answer yes or no. Sometimes you're going to get to clarify the answer on redirect. On rare occasions it's appropriate to say, I don't think I can answer that as a yes or no and look at the judge and say, can I clarify, or can I answer that as more than a yes or no and just ask the judge for permission. Of course, I don't know and I don't remember is always a permissible answer. You shouldn't guess at answers you should answer, I don't know if you don't know what the answer is. Don't offer testimony that exceeds your area of expertise, and probably plaintiffs and defense attorneys are going to try to invite you to do this. Don't take the bait. Try to maintain eye contact, and what some folks suggest is look toward the court or jury as you answer and as appropriate. Credibility is really the name of the game maintaining that and protecting your credibility. Carefully review the testimony and decide what information is important how it's going to be given provide clear and understandable responses and respond consistently and truthfully and professionally because ultimately you're there as an impartial professional and it's not your goal to help one side or the other side. It's just your job to give the facts, whether it's as a fact witness or whether it's an expert witness, wherever the truth lands. That's your duty and that's your responsibility as a professional. So going forward, you want to recognize the similarities and differences between civil and criminal proceedings. Hopefully we've given you enough information to identify the types of civil proceedings in which you may testify. And you want to focus on the clinician's role in the different forms and how to prepare for that testimony, hopefully by coordinating with an attorney. I apologize when my computer crashed. I didn't have my contact information had my colleagues Patty Powers information. But if you reach out to either of us with any information you might need and I'll put my information right now in the chat window. I'm happy to help you however we can and with whatever endeavors you're involved with. But let me get my email address in the chat window so you can utilize that and contact me with anything that comes up. But what I want to find out now is if anyone has any questions now I could answer, or any sort of concerns. Thank you very much. I'm going to give the forum back to to Shay and see if she wants to close us out or. Thank you so much everybody for being here and if that's all I guess we will close and thank you again, Jesse and john.

Civil Trials and Hearings

Testimonies by the Clinician

ECWITAS

Victim Rights Law Center

burden of proof

legal context

subpoenaed

cross-examination

medical records

expert qualification

testimony strategies