Get Real! Instructing is Serious Business

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by Wren Nealy Jr., PCI #860-B/EMSCI #154-B
Cypress Creek (TX) EMS
IPMBA President

When I was in the police academy at the University of Houston, an instructor told us to retain our class notebooks for our career. He said that if the day should come when we were sued for our actions, the notebooks would likely be subpoenaed. I remember thinking, “this is ridiculous. I’m not keeping these binders for the duration of my career. They don’t do this in EMS, and surely he must be exaggerating.” Yet by the end of the academy, I had accumulated four, four-inch thick binders of notes, which reside on the bookshelf in my home office to this very day.

When I began my career as a law enforcement instructor, the instructor made the same recommendation. A small portion of the course was dedicated to liability. Most officers who become instructors earn their credentials in order to teach for their departments. The risk of litigation is still present, but it is mitigated by the department, as long as you do not deviate from the lesson plan. Things get a bit dicey when you start providing instruction independently of your department. You no longer have the department to protect you, provide legal services, and pay out any claims. All of this now falls on your shoulders.

Fifteen years after becoming a POST-licensed instructor, it happened to me. A deputy I instructed as just one of 500 at an agency was in an officer-involved shooting that resulted in an in-custody death. As a matter of practice, the District Attorney took the case before a Grand Jury, which returned an indictment against the deputy. I soon found myself meeting with the prosecutor and investigators who were reviewing my course materials. In this situation, the deputy had acted outside of my instruction, but his defense was that he was doing as I had instructed him to do in the course. Herein lies the rub. Now I am forced into a position of proving what I taught nearly four years ago to a participant I don’t remember.

There are two parts to liability: the criminal and the civil. At this point, we were dealing with the criminal aspects. I was retained by the prosecution to serve as an expert witness. I spent several nights and weekends reviewing case documents and videos, followed by three days of testimony. I had to convince the jury that I had followed my lesson plan and instructional aids. I had to explain how the instructional aids (videos, handouts, references to studies) related to the topic and the points of instruction. The defendant stated the opposite; specifically, that I told the class something that was not in the lesson plan.

Fortunately, I had thoroughly documented my course material, and I knew it to the level of an expert. That proved to be extremely important. The attorney’s arsenal is not as successful when you know your material to that depth. My course materials stood on their merit as evidence. I prevailed and can put this specific case to rest with no fear of a civil lawsuit against me.

It amazes me that in my seventeen-year career as a professional instructor, this is the first time I’ve been called into the “Monkey’s Box” to testify.

It is likely not a matter of if it will happen to you, but when, and how well-prepared you are to defend yourself. I will detail some steps to mitigate your risk and protect your career that I refer to as the “Four Ps.”

Planning

Start by forming a business. It can be an LLC, but you should have something to “Do Business.” The company serves as a buffer between you and your holdings (all of your wealth and belongings). It is for this reason that often people choose to form a Holdings LLC and then file a DBA to Do Business As (insert your company name here). It is a simple process that can be done entirely online using Legal Zoom or by making a trip to your local clerk’s office.

Purchasing

You will need (a) a business bank account and (b) accounting software. Item (a) is pretty easy to obtain. Item (b) can also be easily obtained online. Do your homework first, and don’t skimp here. I initially took the quick, easy, and less expensive route with QuickBooks Online. When I had to convert to the more robust desktop version, it ended up costing me more in the end.

This is a serious note here, folks, so pay attention. Purchase insurance, specifically General Liability and Professional policies that cover “Errors and Omissions.” Now, this step is more expensive than the first one, but it is what will save your rear. Most municipalities will want a minimum of one million in coverage, so don’t skimp here, either. The important part is that it has to cover your scope of instruction, so be detailed in explaining this to your agent. You don’t want to purchase insurance and find out the hard way that your activities are listed in the exclusions section. I encourage you to look into purchasing instructor insurance, even if you only teach for your department. Several professional instructor and education associations offer polices or discounts on policies. [Ed.’s Note: IPMBA has attempted to similarly partner with an insurance company, but due to our relatively small number of instructors, the third-party exposure associated with bike training, and because not all insurance companies are licensed to practice in multiple states, we have been unsuccessful. Seek advice and recommendations from other instructors in your area. If you contract-teach for a training facility such as a community college or academy, you may be able to be insured under their policy as well.]

What about the bike, the gun, equipment, and training aids you have grown accustomed to your department providing? No need to freak out; you can require the client to provide many of these items, such as the audiovisual equipment, the traffic cones, the pallets, and other equipment. If you only teach for your department or department-sponsored events, then no need to worry here. If you contract yourself out as an instructor, start acquiring these things because you should not use department resources for personal gain. And be sure to insure your business property, including your computer and audiovisual equipment. You may need to obtain separate insurance or extend your homeowner’s coverage.

Preparation

Too often, it is easy to skimp on department-sponsored courses. They provide the material, but in some cases, instructors teach from PowerPoint when the lesson plan doesn’t hold water. I’ve seen instructors spend hours developing their PowerPoint presentations rather than their lesson plans. The money is in the lesson plan. You will want to avoid any conflict of interest or copyright infringement. When teaching for personal gain, you will need to use original material or obtain written consent to use the content owned by the department or other entity. So, start your preparation by creating your lesson plans, not your presentations. Your state POST will usually provide lesson plan templates. Don’t forget the instructional aids. I strongly recommend the “Carpe Audience” style of presentation developed by John Michael Keyes of the I Love U Guys Foundation. You can find the book on Amazon, and 100% of the proceeds go to the I Love U Guys Foundation.

As an IPMBA Instructor, the lesson plans, presentations, and ancillary material is provided for you. The catch is you have to follow the program with minimal deviation, if any. Any additional or department-specific material must be clearly identified as such. Only IPMBA Instructors in good standing have the privilege of using the material to teach end-user cyclists the primary curriculum. IPMBA reserves the right to rescind that privilege if the Instructor deviates from the policy or the program or lets his or her instructor status lapse.

Protection

Follow the script, don’t deviate, and don’t get lazy. The lesson plan is more than a way to “check the box” or a requirement imposed by your department, client, or POST agency. Learn it, recite it, and if you add any personal experiences, make sure that your students understand the difference. Any changes or updates you make to your lesson plan and associated course documents should be retained. Deleting the version of materials you used five years ago to make room for a newer version does not free you from testifying to what you taught five years ago. You can reference the version of the lesson plan and instructional aids retained in a different location if you need to minimize storage space.

Document the good, bad, and ugly. Complete the incident report forms, even if students deny injuries as they may surface later. Keep accurate and complete course records, and this means more than a course roster. You should have a file for each course that includes a course roster, written test, practical evaluations, incident/injury reports, participant evaluations, participant complaints, and instructor notes. Instructor notes are essential to help you remember any notable, unusual, and/or interesting occurrences, such as participant interactions, superior performance, remediation efforts, withdrawals, or dismissals.

The purpose of this article is not to dissuade you from instructing, independently or as an employee. It is to provide you with practical advice to help you prepare to protect yourself, your family, and your assets in the event you are called upon to defend your actions as an instructor from civil and/or criminal liability.

Wren is a Paramedic Peace Officer in the State of Texas. He is the Assistant Executive Director of Cypress Creek EMS and serves the Waller County Sheriff's Office as a Lieutenant/former SWAT Commander. He has 27 years experience in EMS and 22 in law enforcement and commands the Tactical and Bike Medic Teams. Wren serves as President of IPMBA and founding board member of the IPSA. He is a past recipient of the NTOA TEMS Award. In 2016, Wren was appointed Vice Chair of the Emergency Services Sector Coordinating Council for US Homeland Security. He can be reached at wnealy@ccems.com.

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