When Clinicians Are Summoned to Testify in Court: Orientation to the Process and Suggestions on Preparation

Original Article

When Clinicians Are Summoned to Testify

in Cour t: Orientation to the Process and

Suggestions on Preparation

Janet L. Murphy, MSN, RN, APRN, CPNP, SANE-P

Abstract

There are occasions when clinicians are summoned to court to testify. The reasons for this are wide-ranging. It can be about

the provision of patient care that is relevant to a criminal or civil legal matter, or to a malpractice complaint, concerns of

safety for a child, child custody issue, allegation of sexual or physical abuse, or being called to testify as an expert witness in

your field of expertise. The legal system is adversarial and litigation is the process used to determine the considered truth of

the matter at hand. The adversarial nature of the courtroom stands in stark contrast to the collaborative mindset and

approach used in health care. Most clinicians will never have to testify in a cour t setting. However, when a clinician does

receive a subpoena, feelings of dread, anxiety, and panic can ensue. This can be especially harrowing if the subpoena is about a

malpractice grievance. Understanding the legal arena, court proceedings and how to properly prepare, can assist the clinician

to navigate the process and stay calm under pressure if subpoenaed to testify. This article will help clinicians know what to do

and how to prepare in the event they are ordered to testify in court. An orientation to the courtroom, basic legal concepts,

and definitions will be discussed. This article is structured in a question and answer format based on typical questions

clinicians ask when anticipating going to court.

Keywords

testify, court, pediatric nurse practitioner, subpoena, health care, clinician

Date received: 25 July 2017; accepted: 27 December 2017

What Is a Subpoena and Do I Have to Show

Up to Court When I Receive One?

A subpoena is a court-ordered command to appear in

court at a certain date, time, and place to provide verbal

testimony, bring records, or provide both testimony and

records, relevant to a certain court case. Most often a

subpoena is issued by an attorney on behalf of a court in

which the attorney is authorized to practice (FindLaw,

2018). This legal document is typically hand delivered to

the person being subpoenaed. Subpoenas that request

testimony or records for patients seen in a hospital or

a larger health-care institution may need to be delivered

directly to the legal oﬃce of that institution. The legal

staﬀ then distribute it to the designated clinician.

The term subpoena literally means ‘‘under penalty’’

and as such, there are possible penalties if you do not

comply with this order, such as ﬁnes or jail (FindLaw,

2018). Therefore, do not ignore a subpoena. While you

may need to testify in court, it also is possible that the

order pertains to a pending trial or hearing that may not

take place. Ideally, the attorney who sent the subpoena

has already notiﬁed you about the upcoming court issue.

The subpoena will identify the name of the attorney

initiating the order, the attorney’s contact phone

number, the type of hearing or trial, date and time,

and the court where your presence is requested.

Attorneys and paralegals at large health-care institutions

Department of Pediatrics, Yale School of Medicine and Yale-New Haven

Children’s Hospital, CT, USA

Corresponding Author:

Janet L. Murphy, 1 Long Wharf Dr, Suite 130, Family Advocacy Center and

Child Abuse Programs, Yale School of Medicine and Yale-New Haven

Children’s Hospital, New Haven, CT 06519, USA.

Email: Janet.Murphy@Yale.edu

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are available to advise clinicians about what to do when

a subpoena is served. If you are unsure about the pur-

pose of the subpoena or this is your ﬁrst experience with

being subpoenaed, ask for help from legal counsel at

your place of employment. Soon after you receive the

summons, call the requesting attorney to ﬁnd out exactly

what is required and the likelihood you will need to test-

ify. The attorney may want to interview you upon

contact.

The legal forum you are being called to could be a

hearing, a court trial, jury trial, or a deposition. A hear-

ing is a legal proceeding that explores a special legal issue

outside the presence of a jury. Some hearings have a

judge presiding and others have a panel of legal profes-

sionals presiding over the legal matter. The goal of a

hearing is to come to a legal determination for a court

motion. A court trial is a legal proceeding that concludes

with a verdict or outcome for the alleged criminal

charges in a criminal case, and a verdict of liability and

damages in a civil case. In a trial, the verdict is decided

by a jury or a judge after the opposing attorneys present

their case.

A deposition is a legal tool commonly used for civil

lawsuits, such as malpractic e c laim s. I t is h eld p rior to

the trial in what lawyers refer to as ‘‘the discovery

phase’’ of a lawsuit. It is a structured interview in

which the person being interviewed (the deponent) is

placed under oath and asked questions about issues of

the lawsuit. Depositions are held for many reasons.

They help to discover all available information about

the allegations and circumstances surrounding the law-

suit, ass ist attorneys in assessing the st rengths and

weaknesses of their case and their opponents’ case,

evaluate the demeanor and the credibility of the witness

and parties to the lawsuit, p reserv e the t estimon y of a

witness who may be unavailable at the time of trial, an d

refresh a witness’s memory or impeach a witness’s cred-

ibility during the trial (Peterson & Kopnishke, 2010).

The attorne ys for each side of the lawsu it a re pre sent

and the interv iew questi ons and ans wer s a re recorde d

by a court reporter.

There are several types of courts that clinicians can be

subpoenaed to regarding patient care they have pro-

vided. These include civil court, juvenile court, criminal

court, and family court. Less often you may be called to

probate court.

What Kind of Court Am I Going to and

What Is the Purpose of My Testimony?

The subpoena will identify the kind of court where you

are requested to appear. The purpose of your testimony

depends on the issue being decided and can be best

answered by the attorney who has sent the subpoena.

Each type of court has authority over a certain domain

of issues. The formality and the standard of proof to

reach a decision varies for each type of court. The fol-

lowing are brief summations of the types of courts a

clinician may be summoned to and the area of law it

governs.

Juvenile court governs cases regarding young persons

who are considered ‘‘juvenile’’ under state law, usually

those under the age of 18. The types of cases heard in

juvenile court include minors who have committed

crimes; minors who are abused and neglected by their

parents or guardians; termination of parental rights;

and cases involving a status oﬀense such as truancy,

curfew violations, running away, and underage drinking

(Michon, 2017).

Juvenile court is where child protection agencies

seek legal judgment regarding concerns of child abuse

and what is in the best interest of the child. A judge

makes the decision and attorneys represent the child,

parent(s), and the state child protection agency.

Matters heard in juvenile court are typically closed and

conﬁdential.

Family court oversees issues regarding divorce, child

custody, child visitation, and domestic abuse. Family

courts are governed by state and local law (Family

Court, n.d.). A judge is the decision maker.

Criminal courts are designed to determine whether a

person has violated a criminal law. The state, represented

by a prosecutor, brings charges against the accused

(defendant) for breaking the law (Mince-Didier, 2017).

The defendant has the choice to have the trial judgment

decided by a judge (‘‘court trial’’) or a jury (‘‘jury trial’’).

The standard is proof beyond a reasonable doubt. The

question being decided is whether the accused (defend-

ant) did what he or she is accused of doing. There is an

attorney representing the defendant (Defense Attorney)

and an attorney representing the state (Assistant State’s/

District Attorney, or Prosecutor).

Civil courts handle disputes between individuals and

businesses. In civil court, one party (plaintiﬀ) sues

another party (defendant) that they believe has harmed

them (Hirby, 1995). The Civil court decisions are based

on a preponderance of the evidence decided by a judge or

jury. Medical malpractice claims allege negligence on the

part of the Health Care Provider and these kinds of cases

are tried in Civil Court. This type of liability requires

four elements be proved. The four elements are Duty,

Breach of Duty, Damages, and Causation (Peterson &

Kopnishke, 2010). If you have been served regarding a

medical malpractice grievance, it would be wise to seek

legal counsel.

Probate court primarily handles matters such as wills,

estates, conservatorships, and guardianships as well as

the commitment of mentally ill persons to institutions

designed to help them (Investopedia, 2017). A judge is

the decision maker.

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What Is the Difference Between a Fact

Witness and an Expert Witness and What

Will be Expected of Me?

When a clinician is called to testify about care provided

to a patient they saw, they are most often being called as

a fact witness. A fact witness is an individual who has

personal knowledge of details pertaining to a case and

can testify on what was personally observed, without an

opinion. A simple example of a fact witness is someone

who testiﬁes that the traﬃc light was red at the time of a

motor vehicle accident. The clinician’s testimony consists

of speaking to the facts known to the clinician. The

information presented by a fact witness is typically

gleaned from the clinician’s documentation and medical

chart notes that reﬂect the clinician’s knowledge about

the case. Once again, a fact witness does not oﬀer an

opinion.

An expert witness is an individual with specialized

knowledge about a subject matter and is called to help

educate the judge or jury about that topic. Ordinarily, it

is regarding a topic outside a layperson’s knowledge.

Expert testimony consists of the presentation of an opin-

ion. For example, a medical examiner testiﬁes to the

cause of death based on his or her autopsy.

The judge or jury makes a subjective determination on

whether an expert is credible (Brodsky, Griﬃn, &

Cramer, 2010; Frasier & Makaroﬀ, 2006). The deﬁnition

of ‘‘expert’’ is generally accepted as someone who is qua-

liﬁed by evidence of his or her expertise, training, experi-

ence, and special knowledge (Frasier & Makaroﬀ, 2006).

The expert witness should have training and experience

in the area in which the court is being advised and should

be regarded by one’s peers as having expertise in the area

as well. To be qualiﬁed in the court as an expert witness,

the attorney who has subpoenaed the witness needs to

‘‘lay a foundation’’ through questions to the witness that

would highlight the witness’s training, education, experi-

ence, knowledge, and skill. The judge will make the

ruling if the witness may testify as an expert. Expert

witnesses are compensated for their time and eﬀort for

preparation and testimony.

Most often clinicians are summoned to court as fact

witnesses. In this role, clinicians are queried about their

personal knowledge about the case. The goals of testi-

mony for any witness are to present information accur-

ately, clearly, objectively, and credibly. These are best

accomplished with thorough preparation.

How Do I Prepare?

Preparation is critical and a prepared witness will be

more eﬀective, whereas an unprepared witness, who

may come across as reluctant, will not. There are a few

things a clinician can do ahead of time to be prepared.

There is usually a signiﬁcant lapse of time from when

a patient is seen for care to when a case goes to court;

therefore, clinicians must rely on their documentation

to remember the accurate details of the case. Thus, for

any case that may go to court, such as suspected

child maltreatment, it is critical to carefully document

at the time the case is seen. Statements made to you by

the patient in response to questions asked or spontan-

eous statements that are relevant should be docu-

mented. Perform a thorough physical examination.

Review and study your documentation of the history

and physical examination in preparation for your

testimony.

Witnesses may bring a copy of their chart documen-

tation with them to the witness stand for reference when

testifying. These are intended to only be used for refer-

ence to refresh the witness’s memory and not to be relied

on to read from. It is not recommended to bring any

handwritten notes to the stand. Be aware that any

notes brought to the witness stand can be called forth

and admitted into evidence.

One goal of witness preparation is to strengthen wit-

nesses’ feelings of self-eﬃcacy about testifying. Witness

preparation is used to help witnesses feel they can testify

eﬀectively and reduce their anxiety about testifying

(Boccaccini, Gordon, & Brodsky, 2008; Ng &

Friedman, 2015). The best way to accomplish this is to

arrange a meeting with the attorney who subpoenaed

you to talk about your role in the trial, and what infor-

mation they expect you to provide. Provide the attorney

with your curriculum vitae as you will be asked questions

on the witness stand about your education and experi-

ence to establish your credentials. Review questions you

may be asked during direct examination and ﬁnd out

what you may be asked during cross examination.

Ask the attorney what they consider to be the basic dis-

pute in the case and how does your testimony address

that issue. Visiting a courtroom ahead of time to become

oriented to the surroundings may help you anticipate

what to expect and be more prepared for the court

experience.

Meet with or talk to other colleagues who have experi-

ence with testifying in court. Most often the clinicians

who work in the ﬁeld of child maltreatment have experi-

ence testifying in juvenile and criminal court. Providers

from the Child Abuse Department at a local hospital will

often be a great resource for this issue.

A few ﬁnal preparation details include thoroughly

reviewing your documentation for the case, know your

curriculum vitae, and make sure you get your rest to be

alert and focused. Your appearance and dress are

important as they will convey an impression. The desired

impression is one of professionalism and credibility.

Dress in comfortable, conservative business clothes and

avoid revealing clothing and ﬂashy accessories.

Murphy 3

What Will Happen When I Go to Court?

Most often there will be other witnesses who have been

called to testify for the same case. It is likely you will

have to wait your turn. It is wise to tell the attorney

ahead of time about your best availability and about

any conﬂicts in your schedule. The attorney may have

a speciﬁc plan for the testifying order of the witnesses.

They will hopefully try to accommodate your needs if

they know about them beforehand.

You will wait outside of the courtroom until it is your

turn to testify. As you wait to testify, you are not per-

mitted to talk about the case to any witness who has

already testiﬁed. This ‘‘sequestration rule’’ eliminates

the inference that your testimony has been inﬂuenced

by your knowledge of anything that has previously tran-

spired during the trial.

When it is your turn to testify, the Marshall will let

you into the courtroom and you will be called to the

witness stand. You will be sworn in by the clerk who

will ask you for your name and business address and

then you may be seated. A microphone is in front of

your seat for you to speak into when responding to ques-

tions and water is available to drink. There will be sev-

eral people all around the courtroom. The Judge will be

sitting next to you and he or she will be wearing a black

robe. The court reporter will be nearby with recording

equipment. The attorneys and their clients will be seated

facing you and the Judge. If there is a jury, there will be

6 to 12 people seated oﬀ to the side of the witness stand.

A couple of the jurors will be alternates.

Who Is the Decision Maker and Who Will

Be Asking Me Questions?

The decision maker for the issue before the court is either

the judge or the jury. Therefore, direct your answers

toward the judge or jury. The attorneys will be asking

the questions, but on occasion the judge may interject

with questions. The attorney who subpoenaed you to

court will be the ﬁrst to ask questions and this is called

‘‘direct’’ examination. The major objectives of ‘‘direct’’

examination are to display the credentials of the witness,

sometimes for ‘‘qualifying’’ him or her; to help the wit-

ness to ‘‘connect’’ with the jurors; and to provide testi-

mony that supports the questioning attorney’s view of

the case (Foucar & Wick, 2007).

The opposing attorney may object to questions being

asked by the attorney. The judge will either rule about

the objection as ‘‘sustained’’ or ‘‘overruled.’’ If it is ‘‘sus-

tained,’’ the judge has decided that the question is not a

valid question. If it is ‘‘overruled,’’ the judge has decided

that the question is valid and can be answered. If the

opposing attorney objects to a question asked, you

must not answer until the Judge makes a ruling.

Next, there is cross-examination conducted by the

opposing attorney. The goals of cross-examination of a

witness who provided damaging testimony are to make

the witness appear unlikeable, to impugn his or her cre-

dentials, or to impeach his or her prior testimony

(Foucar & Wick, 2007). Once cross-examination is com-

plete, the attorney who called you to court may have

more questions and this is called redirect. After redirect,

the opposing attorney may have more questions and this

is called recross. Once the attorneys are done with asking

questions, you are ﬁnished. You will be excused from the

witness stand by the Judge.

How Do I Handle Myself and How Should I

Answer the Questions Asked?

It is normal to feel anxious and nervous awaiting your

turn to testify. Attending court well prepared and mana-

ging your anxiety are critical to being calm and com-

posed on the witness stand.

The questioning attorney intends to control the pace

and feel of cross-examination. Gentle questions evoke

gentle answers. Fierce questions may evoke either ﬁerce

replies or submissive behaviors (Brodsky, 1991).

Inﬂammatory questions are best answered with calm

explanations that demonstrate a conﬁdent sense of pro-

fessional competence (Brodsky & Gutheil, 2016).

Appearing conﬁdent helps one look credible to the

jury. Witnesses are advised to look directly at the attor-

ney who is asking the question and then pause to collect

their thoughts. Answer the question after it has been

completely asked and make eye contact with the jurors

while answering (Foucar & Wick, 2007).

The witness should only answer the question that was

asked. Do not include anything additional that was not

asked. Make sure you have heard the entire question

before answering. If you do not understand a question

do not be afraid to ask for it to be repeated or restated. If

you are asked to answer a question by giving a yes or no

answer and you cannot without an explanation, say so.

Remember a trial is a search for the truth. Keep your

answers simple and avoid using complex medical termin-

ology. Remain calm and collected and try not to react

when the questioning attorney utilizes aggressive or

argumentative tactics.

Keep the same ‘‘persona’’ when answering questions

from both sides. If a witness is friendly and helpful with

one attorney and hostile with the other, the jury will

likely notice (Foucar & Wick, 2007). Testifying calls

for direct focus, attention to questions, and answers

that are honest and on task (Brodsky & Gutheil, 2016).

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Conclusion

The court system provides a forum where legal disputes

can be resolved peacefully and fairly. Clinicians have a

continued responsibility beyond patient care, to honestly

represent the details of care provided if it becomes part

of a lawsuit or legal dispute.

You can do this. If you follow these simple tips

regarding how to prepare and how to handle yourself

on the witness stand, you may ﬁnd testifying in court

to be a challenging, but rewarding experience.

Declaration of Conflicting Interests

The author(s) declared no potential conﬂicts of interest with

respect to the research, authorship, and/or publication of this

article.

Funding

The author(s) received no ﬁnancial support for the research,

authorship, and/or publication of this article.

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Murphy 5