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Preparing for Civil Litigation

Written by Jones, Michelle, Roger Overholt

While most police administrators will acknowledge the rise of civil law suits being filed against law enforcement officers, many do not take the time or dedicate the resources necessary to prepare their personnel to deal with the civil lawsuit process. A civil lawsuit adjudicated against an officer can result in a loss for both the officer and the agency for which he works. Proper preparation and training of officers to give them a better understanding of the civil process can enhance the internal health of the organization. 

Officers are trained to testify in criminal cases which, in most incidents, do not involve a direct consequence to the officers or the law enforcement agency for which they work if the case is not adjudicated in their favor. When an officer is involved in a civil lawsuit filed against him/her or the agency he/she is employed by, the officer may experience a different level of stress than he/she is accustomed to when testifying in criminal cases and may not have a proper understanding of the civil judicial process. Law enforcement administrators and trainers should ensure that officers have knowledge of the civil lawsuit process and are prepared to represent themselves and the agency if a suit is filed against them.

Some law firms will file a civil lawsuit against an officer or law enforcement agency for a plaintiff with an agreement that the law firm will receive payment only if the plaintiff receives a settlement from the suit. This type of agreement provides much motivation for attorneys to invest time and resources needed to develop a winning case or to create a situation where a settlement will be offered to avoid litigation. 

During a civil lawsuit, an officer’s personnel records and performance will be scrutinized and often his/her integrity will be challenged. The officer will be deposed in an environment which is unfamiliar to him/her and under a set of judicial rules to which he/she may not be accustomed. Law enforcement administrators should be equally willing to invest the time and resources needed to prepare their officers to win civil lawsuits. 

Agencies should not rely on the fact that officers are trained and experienced in presenting criminal cases as an indicator of their preparedness to perform well during a civil lawsuit. Dealing with a civil lawsuit can have a negative impact on an officer. An officer accused of wrong-doing may experience stress that is manifested in many different ways. 

Some officers, believing they are being judged by their peers or supervisors, may isolate themselves from others, may become overly cautious when performing their duties, may begin to question their abilities to continue work as law enforcement officers, experience problems in their personal lives, or develop other stress-related behaviors. 

It is not reasonable to believe that all the stress an officer will experience due to being named in a civil lawsuit can be eliminated. It is reasonable for law enforcement administrators and trainers to take actions, which can help reduce stress that an officer will experience during a civil lawsuit. Preparing officers to better represent themselves and the agency during a lawsuit can greatly help both the officer and the agency through the civil litigation process.

Law enforcement agencies should develop a training program to give their employees the knowledge and skills to survive the challenges of a civil lawsuit. Taking a proactive approach to address issues associated with civil litigation may result in career survival for some employees. If law enforcement officers are asked about their training and experiences in prosecuting criminal cases, they will be able to relate training and court experiences from the beginning of their career to the present. 

If asked about their experiences and training in giving depositions and testifying in civil lawsuits, most officers will indicated that they have little or no formal training or experience in regard to civil litigation. When an officer is able to answer that he/she has had experience in the civil lawsuit process, it usually indicates that he/she has received no formal training to prepare for the civil litigation process. 

Administrators and law enforcement trainers have an obligation to prepare officers to perform their duties to the best of their abilities. Officers should be trained to perform successfully during civil depositions or when testifying in civil cases where the agency’s policies, practices, customs, and the officer’s actions and conduct will be challenged.

Many law enforcement agencies have experienced the consequences of having an officer who was unprepared to perform successfully during the challenges of civil litigation. Those types of incidents not only create problems for the officer and the agency but can also have a negative financial impact on the community the agency serves. When citizens learn that law enforcement incurred a civil judgment against the agency, the community may have a loss of confidence in the organization. 

When an agency experiences civil litigation, the agency’s administrators and trainers should review the case and the officer’s performance to evaluate their strengths and weaknesses once the case is adjudicated. The agency should examine their policies and practices relating to the initial incident that resulted in the civil action. The agency should review the performance of their personnel during the initial incident and the performance of personnel during the civil litigation process. 

An evaluation should be conducted that includes the performance of personnel involved in civil litigation during the multiple phases of the litigation process. The evaluation should examine personnel’s performance and conduct during case preparation with attorneys, the deposition process, court room testimony, and post-trial behavior. When a deficiency is discovered, a corrective action should be taken. If it is discovered that personnel involved in civil litigation made mistakes during the civil process, training should be conducted to correct the deficiencies. 

Lessons learned from reviewing a civil litigation process should be conveyed to all personnel of the department to strengthen future performance. Law enforcement officers should be aware of common tactics used by plaintiffs’ attorneys in civil cases. Officers should also be educated to understand the different emotions the officers themselves could experience during civil depositions and court room testimony that they may not experience while giving testimony in criminal cases. A better understanding of emotions caused by the stress of civil litigation could impact an officer’s performance, thereby increasing the chance for a successful outcome. 

Officers required to give depositions should have an understanding of the plaintiff’s attorney’s role, the role of the attorney representing the officers and the agency, the officers’ rights during the process, and their right to have copies of transcripts and recordings made during the depositions of their testimony.  Without proper training from the agency, many officers may not have an understanding of the deposition process. 

Prior to each phase of a civil process, officers should review all documents, recordings, and reports related to the incident and be familiar with any previous statements they have made concerning the initial incident that resulted in the lawsuit. Officers should be trained in the dynamics of court room testimony, building rapport with a jury, understanding the message their body language may be conveying, and the need for professional behavior throughout the civil litigation process.

Training conducted for officers should also include pre-deposition and pre-trial preparation. An agency should not make assumptions that their personnel are prepared to deal with civil litigations. In many agencies, the need to train officers to address issues associated with civil lawsuits brought against the officers and the agency is overlooked. Most basic law-enforcement training academies and field training programs include training to prepare officers for the criminal court process but do not include civil litigation training as part of their curriculum.

Officers should be trained in the type of documents, reports, and recordings they should be reviewing prior to give testimony in a civil case. Officers should be given time, while on duty, to properly prepare for defending the agency and themselves. Allowing department personnel the time and access to the resources they need to prepare for civil lawsuits can increase the probability that the case will end favorably for the officers and the agency.

If a civil judgment has been awarded against an agency, supervisors and managers will often comment on the fact that the involved personnel did not do well defending against the lawsuit. However, the need for corrective action to prepare the agency’s personnel for future civil actions is often overlooked.  A proper review to determine the cause of a loss must include the performance of the agency’s personnel who were involved in the litigation. 

Agencies often attempt to correct deficiencies after the loss of a lawsuit by addressing issues of training or evaluation of policies relating to high-risk areas. The agency may evaluate their policies and procedures with no emphasis placed on the department’s and the individual employee’s performance during the civil process. The agency must acknowledge both their strengths and weaknesses in order to better prepare their personnel for civil litigations. 

Prior to giving a deposition or testimony in a civil case, an officer should have a case review meeting with the attorney who is representing the officer and the agency. Should the attorney responsible for representing the officer and the agency not contact the officer to schedule a review meeting, a command level supervisor should arrange the review meeting by contacting the attorney. 

A case review meeting will allow an officer the opportunity to become familiar with the attorney with whom he/she will be working, ask questions about the civil process, and address any concerns he/she has about the facts of the case. The review meeting will also give the attorney a chance to become familiar with the officer involved in the case and to address any concerns he/she may have regarding the case.

As in a criminal case, officers should acknowledge to their attorney any concerns they have regarding the facts of a civil case. In the dynamic environment of law enforcement, mistakes may be made. A plaintiff’s attorney will make every effort to discover any mistake that an officer might have made. If a plaintiff’s attorney discovers an error made by an officer, he/she will use the information to make his case look stronger against the officer and the agency. 

Any error discovered may be used in an attempt to discredit the officer or the policies and procedures of the organization. In order to reduce the impact a mistake may have on the outcome of a civil litigation, an officer should acknowledge the mistake and discuss it with his/her legal representative.  Discussing any areas of concern prior to giving a deposition or testimony in a civil case will assist both the officer and the attorney involved in defending the case.

Law enforcement agencies do not expect their personnel to perform critical tasks without proper training. Prior to an officer being involved in civil litigation, agency administrators and supervisors should take the time to ensure that the officer is properly trained and has an understanding of the civil process. Many hours of training and review are invested in officers to assure they are prepared to perform the complex and often dangerous tasks associated with law enforcement. The need to train and prepare officers to be successful during a civil litigation against the officer or the agency the officer is employed by should not be ignored.

 

Roger D. Overholt is the Chief of Police in Morristown, Tenn. He has a Master’s Degree from Tusculum College and is a graduate of the FBI National Academy. He may be reached at chiefofpolicemt@charter.net.

Michelle Jones is the Major with the Morristown, Tenn. Police. She has a Master’s Degree from Tusculum College and is a graduate of the Tennessee Law Enforcement Executive Development training program.

 


Published in Law and Order, Aug 2014

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