February/March 1996 Police-Defendants: Surviving a Civil Suit By Dave Chambers __________________ Mr. Chambers operates a consulting group in Pacific Palisades, California. __________________ (Police officers faced with civil litigation discover that they are seldom prepared for the role of defendant.) With all the problems police officers confront daily, they also must contend with the possibility of being named as a defendant in a civil suit. Each year, citizens file an estimated 30,000 civil suits against the police, charging individual officers with negligence or as a party in the liability.1 Indeed, today's litigious society serves as a haunting reminder to officers that decisions they make on the job could result in career-threatening civil action. While law enforcement professionals strive to minimize liability risks, they cannot anticipate every action that could precipitate a lawsuit. Yet, despite solid training and conscientious efforts to exercise proper judgment, one fact holds true, that is, many officers will be personally named in a civil suit at some time during their careers. When this happens, officers discover that being a police-defendant is frustrating, difficult, and confusing. It is a role for which they are seldom prepared. Still, the thought of "preparing" police officers for the prospect of being sued presents some perplexing questions. Does the mere threat of encountering civil litigation justify preparing all trainees for the police-defendant experience? How would citizens react if all officers were trained to expect a civil suit during their careers? What effect would this awareness have on police recruiting? Is it fair to officers if their departments do not prepare them adequately to survive, both emotionally and legally, the stressful effects of civil litigation? Unfortunately, until such questions have answers and departments routinely provide officers the support and preparation they need and deserve, police-defendants will continue to feel angry, scared, and alone when hit with a civil suit. This article offers some basic suggestions that should be considered by all police officers faced with the personal challenge of civil litigation. With support from their departments, they can prepare constructively for trial and can contribute positively toward their defense. SUPPORT OF THE DEPARTMENT While police officers should be held accountable to standards set by society and their profession, they, as individuals, should not be lost in or abandoned by the process. Internal investigations, insensitive jokes from peers, immediate demands from over-burdened attorneys, and inadequate support from their departments all contribute to the anger, fear, and frustration felt by officers as a result of the litigation. To ignore the stressful impact of the police-defendant experience creates unnecessary risks that can profoundly damage a case. Support from associates helps officers to adjust to the role of police-defendant and helps them manage the emotional burden. Officers who do not have departmental support often fail to cope with the defendant role and end up compounding their problems. Departmental support, combined with a realization of the role requirements for police-defendants, can make all the difference in the final outcome of a civil suit. ROLE REQUIREMENTS Law enforcement officers should never assume that the role of police-defendant will resemble their more familiar role of police-witness. The threat of personal risk, the effect of strong attitudes, and the value of emotional expression during testimony become altered dramatically with the officer's role reversal. Recognizing these distinctions is the first step toward effective trial preparation. Differences A major misunderstanding with a civil trial, one that compounds the anxiety that police officers experience, is the false expectation that they will be treated like police-witnesses. Police officers receive training to testify as witnesses, and they garner a certain professional respect in that role through on-the-job experience. It comes as a shock when officers learn that police-defendants do not command the same respect. Many police-defendants testifying in a civil suit assume they should demonstrate the same demeanor they use as a professional police-witness. This is a dangerous assumption. Officers need to be cognizant of, and know what to expect from, the dramatic differences between the routine role of witness and the more challenging and demanding role of defendant. Increased Personal Risk Personal risk is altered considerably by the change in roles. Officers testifying as witnesses do not face serious personal consequences. They may be verbally attacked at deposition, or in extreme cases, suffer minor public embarrassment when testifying in court, but beyond that, the extent of personal risk is minimal. After their testimonies, police-witnesses resume their normal duties and private lives. On the other hand, in a civil suit, police-defendants offer testimony in defense to direct, personal attacks, not as professional sources of information. If police-defendants lose the judgment, serious consequences most likely will plague them for years. They probably will suffer financial losses; their careers and family stability may deteriorate; their self-esteem and confidence could be shattered. Although increased personal risk appears obvious, most police-defendants do not confront feelings about their predicaments until far too late in the trial preparation process. The delay between the precipitating incident, the initiation of the suit, and the actual trial preparation allows officers to fall back into their normal work routines. Frequently, a sense of confidence develops from the false belief that their own trials will parallel previous and familiar criminal trial experiences. Not until the trial date approaches and the specific task of trial preparation begins to dominate the officers' time does the real threat of personal risk begin to emerge. After avoiding and denying for months thoughts of what might happen, many police-defendants feel defensive, frightened, and anxious when finally forced to accept the role of defendant, even though they may appear confident and unconcerned. The psychological shift from a routine frame of mind to the reality of the police-defendant role can be traumatic. Consequently, it is far better for that adjustment to occur early in the trial preparation process. Early acknowledgement and acceptance of the potential for serious personal risk help police-defendants work through difficult emotions, plan ahead, and avoid intense feelings that inevitably hinder effective testimony. Strong Attitudes While police-defendants may develop "attitudes" concerning criminal cases in which they testify, the emotions associated with such feelings usually do not obstruct their ability to offer clear, concise professional testimony. The police-witness role requires a degree of emotional detachment. Ideally, they offer information objectively and without bias or personal predisposition. Although an occasional expression of an "attitude" by a police-witness is less than appropriate and professional, rarely will it discredit the overall value of the testimony. The police-defendant role is altogether different. By definition, it represents a personal attack on the officer. When finally recognized, the threat of severe personal consequences generates emotions that breed strong, often over-powering attitudes. Officers who project an attitude of hostility, arrogance, indifference, or a myriad of other negative dispositions while testifying as police-defendants cause irreversible damage to the defense. The jury's perception of attitudes displayed become a major factor in deciding a verdict. Personal attitudes, therefore, will produce vastly different consequences for the police-witness and the police-defendant. Display of Emotions Another factor dramatically affected by the change in the officer's role is the value of sincere emotional expression. Unlike police-witnesses testifying professionally as sources of information, police-defendants experience intense emotions both prior to and during a trial. Whereas the police-witness role requires emotional objectivity, the police-defendant role demands emotional expression. One of the most serious mistakes officers make when testifying as defendants is to believe they must maintain a reserved, detached, professional demeanor throughout their testimony. This assumption results from years of experience testifying as witnesses, where the perception of a methodical, controlled professional empowers the testimony. While presenting a professional image in court remains important for police-defendants, jurors also must sense their genuine, human qualities. For example, it is not enough, during a wrongful death suit, to state in a matter-of-fact manner how badly the officer feels regarding the loss of an innocent person's life. The officer must communicate genuine sorrow as well. For most officers, this is a real challenge, as so many divergent feelings compete for equal expression. Police-defendants must be able to break through the police-witness stereotype and relate to jurors as humans to receive compassion. Showing only an emotionally detached "professional" demeanor grossly misrepresents police-de-fendants and misleads the jury. To communicate "humanness" genuinely, police-defendants must separate their different emotions and express only those that help to convey the desired message accurately and clearly. Doing this successfully requires sorting and confronting strong feelings well before offering testimony. To allow opposing counsel to tap into highly volatile emotions for the first time in deposition or trial can be devastating. Still, revealing private emotions in a sensitive manner is a critical element in convincing and persuasive testimony. CONVEYING THE MESSAGE Everyone present in the courtroom focuses their attention on the information offered during trial. The manner in which that information is conveyed is of equal, if not greater, importance. The behavior exhibited with the verbal message determines the effectiveness of that message. If behavioral expression is not compatible with the verbal message's content, the value of the information decreases. Police-defendants must be able to communicate congruous verbal and nonverbal messages to offer believable testimony. Once police-defendants recognize and understand the specific demands of their new role, effective testimony preparation can begin. Learning how to testify while displaying a demeanor consistent with the defendant role is a major adjustment. If neglected, police-defendants risk relying on familiar communication styles that can jeopardize an otherwise strong substantive testimony. The profound difference between being a witness and a defendant helps to define what is meant by "appropriate demeanor." A major difficulty that police officers experience as defendants is accepting the inherently submissive nature of the defendant role. Submissive in this sense only means that in relation to the other professional roles in the courtroom, the defendant is subordinate. It does not mean that the officer is weak or backing down. It is simply the characteristic of a particular role, denoting a specific social relationship in the context of the trial. For police-defendants, the need to maintain a submissive demeanor, particularly during heated cross-examination, challenges the officers because it is totally out of character to what they are accustomed. Yet, police-defendants who fail to communicate a humble and respectful posture during a civil suit are guilty of the same offensive conduct of citizens who defy the police. Jurors will interpret negative behavior by the police-defendant as disrespectful and inappropriate, which could have severe consequences. The value attributed to information results from the perception of its source. Observable, nonverbal behavior, along with the verbal message, ultimately determines the power of the information. Body Language and Gestures Empower Words Body language, the external expression of internal thoughts and feelings, refers to physical posture; hand gestures; leg, trunk, eye, and head movements; or any other observable behavior exhibited by an individual. Body language can either enhance or confuse the intended meaning of the verbal message. Many police officers receive training that emphasizes the value of body language when performing their jobs. If an officer needs to assert control during a verbal confrontation, a shift in stance or change of posture is a standard, effective technique in the use of body language. Likewise, how officers express themselves nonverbally in the courtroom is equally important. If an officer needs to communicate compassion and sensitivity at a critical point in the testimony, the demeanor exhibited at the time must "agree" with the content of the message. For example, the officer may say, "I want you to believe that I really care about this," but with nonverbal behavior, the message might become, "I really don't care. Let's get this thing over with. I have more important things to do." When testifying, police-defendants should be cognizant of their body language. Aggressive, indifferent, or passive body language sends a damaging message to jurors. Ignorance of body expressions places the officer's internal feelings and thoughts at the risk of misinterpretation. Therefore, police-defendants should always remember that if they can be observed, they also are communicating, regardless of who is speaking. Proper Communication Ensures Credibility Two aspects of communication, content and process, influence the value of testimony. Content refers to the words spoken; process refers to how those words are expressed and all other nonverbal communication associated with the verbal message. Content offers information about the subject of conversation; process tells what is going on between the speakers. Police-defendants need to understand how these two important aspects of verbal communication affect testimony. At trial, the focus of concern, theoretically, centers on the facts of the case. The jury bases its decision on the agreement of these facts. In reality, it is the process of offering information that persuades the jury to filter disputed information as fact. Tone, inflection, pace, and volume constitute important behavioral aspects of verbal expression that influence how jurors perceive police-defendants. Police-defendants must be comfortable speaking with feeling, if they want others to believe what they say. When testifying, police-defendants also need to chose cautiously the words they use to describe the events. The incorrect use of words, no matter how insignificant it may seem, can create ambiguity that dramatically changes a juror's perception of the facts. Colorful adjectives that slip out, either intentionally or unintentionally, communicate feelings that easily can be misinterpreted. Clear testimony requires careful and accurate word usage. The method of attaching truth to information stems from the manner in which the defendant offers information. Jurors decide the value of information based on their perception of the source. When they agree on the source's credibility, disputed information becomes "fact." Eye Contact Conveys Trust and Confidence Police-defendants testifying in a civil suit frequently make the mistake of addressing their answers to the attorneys, not to the jurors. While this is suitable for police-witnesses offering information as professionals, police-defendants doing the same lose a prime opportunity to gain the trust and confidence of the jury. Police-defendants should never forget that their character is under constant scrutiny. Establishing genuine eye contact with jurors becomes important if the defendants are to be perceived as believable. Excluding the jurors from direct eye contact projects an attitude that officers are being evasive or do not consider the jury's presence important. Poor eye contact also conveys an inability to face the jury and can negate powerful substantive testimony. Conversely, direct eye contact relays trust and honesty. Consequently, officers should never overlook the importance of sincere and genuine eye contact with those who are ultimately going to determine the outcome of their case. Controlled Facial Expressions Reflect Genuine Feelings Facial expressions often send unclear or ambiguous messages that confuse communication. Because the experience of testifying as a defendant is unnaturally formal and emotionally intense, officers frequently exhibit facial expressions that are rigidly stoic and not consistent with true feeling associated with the message. Smiling, squinting, or raising one's eyebrows, as well as cocking one's head to one side, may send an unintended message. The significance of facial expressions should not be underestimated by police-defendants who need to send their message loud and clear. CONCLUSION Police officers face one of the most difficult tasks of their personal and professional lives when forced to assume the role of police-defendant. Inadequate understanding of the process, conflicting social pressures, and intense personal emotions all combine to create a psychological nightmare for officers named in a civil suit. By the time the trial begins, many police-defendants are emotional time bombs capable of exploding if the right button is pushed. And, no one wants to push that button more than the plaintiff's attorney. Police-defendants, however, can contribute meaningfully to their own defense. Anticipating emotional reactions common to most police-defendants assists officers to survive the civil litigation process. Understanding the differences between the police-witness and the police-defendant helps officers to adjust to the role reversal. Improving basic communication skills corrects bad habits, reduces misinterpretation, and helps provide clear and convincing trial testimony. With timely and effective preparation, officers can avoid common mistakes and habits that can undermine their defense and create real, personal nightmares. __________ Endnote: Victor E. Kappeler, Stephen F. Kappeler, and Rolando V. del Carmen, "A Content Analysis of Police Civil Liability Cases: Decisions of the Federal District Courts, 1978-1990," Journal of Criminal Justice, vol. 21, No. 4, 1993, p. 330. ___________________________