8/11/18 - cdn.ymaws.com · 8/11/18 1 simple tips that will help you survive a complex experience by joe flores jd, aprn, fnp-bc, ccrn nurse 30 years, aprn 20 years, trial lawyer 17

8/11/18

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SIMPLE TIPS THAT WILL HELP YOU SURVIVE A

COMPLEX EXPERIENCE

BY Joe Flores JD, APRN, FNP-BC, CCRN

Nurse 30 years, APRN 20 years, Trial Lawyer 17 years = Old

War Horse

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FOR MORE INFORMATION CONTACT JOE AT

[email protected] OR 361.887-8670

GOALS AND OUTCOMESINCREASE KNOWLEDGE REGARDING THE DEPOSITION PROCESS

UNDERSTAND HOW TO PREPARE FOR A DEPOSITION

VERBALIZE KNOWLEDGE REGARDING THE PITFALLS THAT MAY OCCUR

UNDERSTAND THE PROCESS AND KNOW HOW TO CONDUCT ONESELF THROUGHOUT THE PROCESSINCREASE KNOWLEDGE REGARDING THE IMPORTANCE OF BEING TRUTHFUL AND RAMIFICATIONS OF DECEIT OR AVOIDANCE OF PROVIDING THE COMPLETE TRUTH

9/7/18 2FOR MORE INFORMATION CONTACT JOE AT [email protected] OR 361.887-8670

Why do APRN’S need to know about depositions?� The vast majority of civil cases are settled prior to trial. � Single most important event during the entire course of the

litigation. � Sworn testimony� Many cases are settled after depositions are taken based on

the testimony of the witnesses. � preparation for a deposition given by the nurse, whether as

a party or as a witness, cannot be over-emphasized.� APRN’s are becoming the “captain of the ship” in half of the

United States and often the only provider at a clinic or institution that sees 30-40 patients a day



litigation. � Sworn testimony� Many cases are settled after depositions are taken based on

the testimony of the witnesses. � preparation for a deposition given by the nurse, whether as

a party or as a witness, cannot be over-emphasized.� APRN’s are becoming the “captain of the ship” in half of the

United States and often the only provider at a clinic or institution that sees 30-40 patients a day


STAY CALMANSWER ONLY THE QUESTION ASKEDWAIT ONE FULL SECOND BEFORE RESPONDINGASK FOR ATTORNEY TO REPEAT QUESTION IF IT IS CONFUSING.



litigation. � Sworn testimony� Many cases are settled after depositions are taken based on the

testimony of the witnesses. � Preparation for a deposition given by the nurse, whether as a

party or as a witness, cannot be over-emphasized. If you have a lawyer have him review the finer points of a deposition but do not have him/her put words in your mouth

� APRN’s are increasingly becoming the “captain of the ship” in half of the United States and often the only provider at a clinic or institution that sees 30-40 patients a day (More depos)


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Significance of Depositions� A deposition will also commit the nurse to testimony,

locking the deponent into a story. � If the nurse being deposed is contradictory in their trial

testimony the conflicting information may be used to impeach the nurse.

� Nurses are subpoenaed with increasing frequency as deposition witnesses.

� Depositions can be videotaped. Avoid rocking back and forth, flashy jewelry, fashion statements, T-Shirts with political or social statements, be polite-sarcasm always backfires. Let the lawyer be the bad guy not you!

� It’s OK to say “I do not recall at this time” or “Not that I am aware of”. Saying a flat “I don’t know more than once is not a good thing.


Prepare for the deposition.� well prepared to give concise, clear and

factual testimony.� Arrive on time. � Do not engage in conversation with the

opposing attorney regarding anything remotely relevant to the case.

� This includes you background, training and experience. Be composed and be quiet.

� Be extremely cautious about everything you write and any journal or notes you may have. All of this can be discoverable


What can a nurse expect at a deposition� For all practical purposes a deposition can

be taken almost anywhere. sort of conference room where there are chairs for you and the attorneys to sit.

� A judge is not present even though you are given sworn testimony. Only under rare circumstances such

� as a case where the attorneys cannot agree on anything will a judge be present.

� If there are multiple defendants in the case, there may be multiple attorneys present at the deposition


Depo Tips and Etiquette� The attorney asking the questions will

appreciate not being interrupted and should accord the same courtesy to you.

� The court reporter cannot record two people talking at the same time

� Don’t answer any question you do not hear or understand.

� There should be no trick questions in a deposition. If you answer a question, everyone will assume you heard and understood the question.


Depo Response Tips� Answer all questions directly, giving concise answers to the question and stop talking. Answer only the question asked.

� This is a common mistake for nurses. Sky is blue.

� Never volunteer information

� If the question calls for a yes or no answer, answer yes or no and wait.

� However, if the question calls for an explanation it is fine to give one.


More Depo Tips� More damning testimony has been

obtained because a nurse wanted to “educate” the attorney about the health care profession..

� If you feel a clinical fact is important to get on the record, inform your attorney.

� It is acceptable to give your best estimate or your best recollection as long as you make it very clear on the record


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Deposition Facts� It is crucial to stay focused.� Remain calm� Ask for frequent breaks if need be (about every

45 minutes to an hour and a half.� Becoming argumentative, defensive,

combative or evasive are traits that could be exploited by an opposing attorney.

� Remember that the deposition is used to memorialize your testimony.

� At the conclusion of the questions by the examining attorney, the other attorneys involved inform and make the deposition available for your review and comment.


1. The Same Rules Apply as in Civil and Criminal Depositions

2. Demonstrate Courtesy and Maintain Your Composure3. Remember that whether or not you have an attorney

you are the brakes and gas (can take breaks, ask for a question to be re-read or repeated

4. No attorney ever gets a good result by bullying an attorney


BON DEPOSITION� Generally you are either called as a witness on

behalf of yourself (hopefully with a lawyer present)� Alternatively, you are a fact witness and know about

a particular situation

� Either way you may ask to review documents to clarify or refresh your memory

� A BON Formal Charges Hearing is just like a trial


A BON PROCEEDING: INFORMAL VS FORMAL CHARGES� You may be called by a colleague to provide testimony on

their behalf� You may be subpoenaed to tell the BON in your own words

what happened.� Avoid hearsay (“I heard that she said that the nurse took the

drug out the cart without an order” is hearsay.� Hearsay is an out of court statement used to prove the truth

of the matter asserted. Your own 5 senses must be used and your own personal knowledge (“My understanding, I heard the nurse discussing the drug…” etc.”) Remember personal knowledge


A BON PROCEEDING: INFORMAL VS FORMAL CHARGES� At a formal charges hearing you may be asked to step

out of the room while others testify so that your testimony is not tainted or affected (This is known as invoking “The Rule”)

� A hearing officer, a lawyer for the BON and a lawyer for the nurse being charged of allegations should be there

� Your job: Tell the truth. Do not exaggerate, speculate or attempt to help either side. Simply testify to what you know


CRUCIAL MISTAKESIN INFORMAL VS FORMAL CHARGES� Do not try to answer more than the question that

was asked: Example, “Nurse Practitioner Smith, what color is the sky?”

� Answer: It’s blue, but there are clouds that are coming, it may rain, turn gray and cloudy soon and I hear that it is going to be an unusually cold winter..”

� Just answer the question: “Blue.”


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It is important to prepare for the deposition by reviewing the chart and going over any information that the attorney recommends. If you are represented by an attorney, insist on receiving deposition preparation. If you are not represented by an attorney, consider a consultation or hiring an attorney to represent you during the deposition. Always notify risk management and your immediate supervisor if you have been notified by subpoena of a deposition date and time.. A word of caution: I recommend consulting with your own attorney. If the deposition is geared toward your own negligence you may be subject to being named as a party in a lawsuit and not just "one of the crew“. However, it is in the best interests of all parties that you be well prepared to give concise, clear and factual testimony. Remember that an attorney may be able to not only ask about a nurses education, training and background but also about family, friends, conversations regarding the case, and past employers.


Experienced attorney know better than to bully a nurse or APRN

Usually the deposition starts out with benign questions such as if you

have had your deposition taken before

Reassurances that you can take a break and it is not a contest of

endurance

Remember to ask to be able to review a document an attorney is using

to question you

It is not a memory contest. It is OK to say “I do not recall at this time”

or “If I remember may I let my attorney or this panel know?” This

alone provides credibility and shows that the case may be remote in

time- which most are.

“That is all I can recall at this time” and “I do not recall “ is certainly

better than “ I do not know”

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FOR MORE INFORMATION CONTACT JOE AT

[email protected] OR 361.887-8670

Generally a court reporter takes down everything or the proceeding is being recordedIt is important that a clean record whether in writing or recorded is madeDo not talk over an attorneyIF the attorney continues to cut you off or tries to , politely ask, “May I finish my thoughout. I am sorry, but I haven’t finished.” That is a very effective tool


FOR IMPEACHMENT PURPOSES:A lawyer may want to diminish your credibility, especially if you are a key witness against his or her caseQuestions about arrests, termination from a job, being disciplined, reprimanded or involved in other cases are all fair gameDo not be shocked if asked about a nasty divorce or bankruptcyRemember that by counting “ONE MISSISSIPPI” or a deep breath before you answer you give the BON or the Administrative Judge or Heariing Officer an opportunity to rebuke the lawyer or say that line of questioning is irrelevant. When the judge or hearing officer enters or leaves the room you standWhen you stop testifying ask if you can be excused (good etiquette) and it shows you are cool as a cucumber.


Depositions: Out of or in-court statements that are used for evidence.They can be played in court as a DVD and used to impeach you and show you made prior inconsistent statementsTherefore, always tell the truth and do not speculateIf asked what you were told to say before the deposition the correct and moral response is: “I was told to tell the truth” or “Nothing”.IF asked How Did You Prepare Today: Either respond I didn’t or “I reviewed the record that was given to me and be prepared to show them”Remember you are in control. Maintain your cool. A water break or bathroom break after a line of questioning or after a line of questioning is appropriate if politely asked.


99.9 percent of the time one deposition is not going to kill a caseDo not be hard on yourself if you didn’t get to say everything you wanted to.Be careful with the old trap of: “Have you understood all my questions?” asked by the lawyer if you have not. If you have not bring it up.Avoid another trap of open ended questions like: “ What more would you like to say about this case?” This will usually draw an objection.Watch you body language. Do not fidget. Wear layered clothing if you tend to be cold. Dress professionally. Do not stare into the camera if being videotaped.NEVER LOOK TO YOUR LAWYER WHEN BEING GRILLED AND IN THE HOTSEAT. KEEP CALM AND ANSWER THE QUESTIONS. LOOKING TO YOUR LAWYER MAKES YOU LOOK EVASIVE AND IN TROUBLE. STAY CALM.


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REVIEW TEXAS OR FEDERAL RULES OF CIVIL PROCEDURE

GO WATCH A TRIAL: TEXAS HAS OPEN COURTS

CALL or Contact me: [email protected] or 361-887-8670

Big Tip : ALWAYS CARRY YOUR OWN INSURANCE : OCCURRENCE BASED. MERCER AND NSO ARE SOME THAT ALLOW YOU TO PICK YOUR OWN LAWYER AND COVER YOU FOR LOST PAY WHEN YOU HAVE TO BE DEPOSED OR SHOW UP TO AN ADMINISTRATIVE TRIAL IN FRONT OF THE BON . WHY CARRY YOUR OWN: EMPLOYER TODAY, ENEMY TOMORROW OR THE EMPLOYER HAS BAD INSURANCE!


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8/11/18 - cdn.ymaws.com · 8/11/18 1 simple tips that will help you survive a complex experience by joe flores jd, aprn, fnp-bc, ccrn nurse 30 years, aprn 20 years, trial lawyer 17