Utilizing Evidence to Be Proactive in Our Space

• Author: Judith A. Hoechst
• Pages: 41-42

SPRING 2022 41

art: law & practice

By Judith A. Hoechst

The Federal Rules of Evide nce and how to use them

appropriately and ef fectively was integral to our

legal education. A s law students we learned

evidence makes the exis tence of a fact more or

less probable. We lear ned of its many forms:

testimony, document s, tangible objects, p hotos, videos,

recordings, writi ngs, records, and more. We learne d how the

Rules of Evidence alloc ate the burden of producing evidence

and the burden of per suading the court. Many people t hink

of criminal law in relation to “evidence,” but prov ing or

utilizing evidence is a critic al tool in the everyday practice of

all areas of law. Indeed, the p roffer of evidence was critical

in proving or disproving n egligence in my former area of

practice, medic al negligence and massive tort litig ation. Used

effectivel y, evidence is a powerful tool of persua sion for

settlement of c ases and trial outcomes.

The practice of law do es not corner the market on the

applicability of evi dence in other professions. Evide nce-

based standa rds of acceptable practice inuen ce most if not

all professions or e lds, whether one is an engineer, archi-

tect, teacher, contrac tor, childcare provider, or attorney. I

was a pediatric nurs e prior to and while attending law

school. The prac tice of nursing utilizes evidence-b ased

medical care to provid e acceptable standards of care .

Evidence-ba sed medicine is at the heart of goo d medical

care and is the basis of p rofessional decision-makin g

resulting in predic table, positive patient outcome s. The

consequence of failing to f ollow evidence-based guidelin es

that amount to harm may resul t in negligence suits no

matter the profes sion.

What about our pe rsonal lives? How does evidence affec t

our real lives, our non -work lives? Reality is dened as a real

event, a real thing, a st ate of affairs. Reality exist s in the

places where we live our d aily lives, in our experiences,

circumstances , and relationships with others . There are times

when we recognize that gap s exist and we need real-world

evidence to ll them in, to make us w hole, or to help others.

The events and exp eriences in my own life compelled me

to help others in ways I neve r saw coming. I always loved

caring for babies and c hildren, so it was natural for me to

become a pediatric nu rse. I went to law school while

continuing to practice p ediatric and neonatal intensive care

Utilizing Evidence to Be Proactive

in Our Space

nursing. My husba nd and I experienced great difc ulty

conceiving. Over the co urse of time, I suffered multiple

miscarriages . I cared for so many babies and children as a

nurse and faced the p ainful prospect of not having any

children. We sought the ca re of a reproductive endocrinolo -

gist, success fully conceived via IVF, and my husband and I

experienced the d eep joy of being new parents of our

beautiful daughter. Two years later we explored going

through IVF once aga in to have another child. We learned

that due to damage to my uter us from our daughter’s

delivery, I was unable to s afely carry another pregnanc y. We

began to explore surr ogacy as a means to grow our family.

Our physician provide d us with appropriate parameters an d

factors to consid er in a surrogate. He said to me “You can do

this. You’re a nurse, you’ve worked with p eople from every

walk of life. You’ve been through IVF. You’re an attorney.

You’ve got this. You can nd someone sp ecial who will help

you.” He afrmed that realit y existed in the places where I

lived my daily life, in my exper iences, circumstances, an d

relationships with ot hers.

Years ago, when we were looking f or a surrogate,

Colorado had no surrog acy statute or case law, and I knew

nothing about assi sted reproductive technolo gy (ART) law.

My practice area was to rts. In doing research on surro gacy I

learned California had a g ood surrogacy statute and c ase law

conrming parentag e via surrogacy. Because of this, my

Published in Family Advocate, Volume 44, Number 4, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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