WHEN THE THERAPIST IS
CALLED TO COURT
You can make it out alive
Maggie Labarta, Ph.D., August, 2015
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
What you should expect

How to respond (and not to)

Learn roles you can play in Court (and can’t)

Managing Court testimony & challenges
OBJECTIVES (MAKING IT BACK
TO KANSAS)
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

Be clear about your role and the boundaries, and the limits to confidentiality with your client
from the outset

“Duty to warn” in cases of potential harm to self or others

Abuse reporting requirements

Court orders received in advance

Referral source or payer requirements
Be accurate about how your skills and role with the client and any other involved parties



Evaluation

For Court – to aid in making a determination

For Court or others – to recommend treatment course
Treatment – In cases referred by the criminal justice or dependency systems, there may be a court
order or case plan requiring disclosure of at least some information; or specific goals to be
achieved
Make sure all your opinions are on the record and supported by data, expertise, research

Those in the medical record

Those verbalized at staffings or letters or phone calls
BEFORE YOU GET CALLED …
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
Review relevant referral and prior assessment data


Internal or external
Be thorough, document the basis for your diagnosis and treatment plan, making sure to have
considered all elements of a referral as well as the goals of the client

Assess risk

Record opinions in the medical record only about the client in your care

Ensure that you are

Charting attendance

Following up on no-shows

Recording the evidence-based practices used

Recording progress in treatment

Symptom changes

Functional changes

Changes in risk status
THE MEDICAL RECORD
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
Client asks

Attorney for the client asks

You are subpoenaed


Attorney for your client

Attorney for the other side

The Court
Subpoena duces tecum
WAYS YOU CAN END
UP IN COURT
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
Send to Health Information Management/Medical Records

Ensure the subpoena is legally sufficient


Let your supervisor and/or Risk Management know – check your
organization’s notification requirements
Let the client know

If client wants you to honor the subpoena, s/he needs to sign a release

If s/he does not, his/her attorney or your agency’s attorney can attempt
to quash the subpoena because you do not have the necessary

Information;

Credentials;

Standing;

Or, because doing so violates statutory client privilege or can cause harm
FIRST STEPS WHEN YOU GET CALLED
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
Judge and Jury


Prosecutor/Plaintiff’s Counsel


Seeks Justice as representatives of the state
Defense Counsel


Triers of fact
Advocates for accused/defendant, within specified limits
Witnesses

Provide information to the Court useful to help the trier of fact

decide the issues at hand, or

Understand technical matters important to the decision(s) to be made
Legal standard in cases where custody is at issue (dependency or
divorce) is the “best interest of the child”
 In criminal cases, public safety and amenability to treatment are often at
issue

ROLES
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

Expert – A professional retained or subpoenaed for their specific expertise
who

Offer opinions that may assist the trier of factin understanding technical
knowledge in order to support their ability to make a sound ruling in a case;

Are credentialed by the Court as specialists;

Are typically allowed more leeway in testimony than fact witnesses;

Have the content of their testimony carefully examined by the court via attorneys
or direct questioning for validity.
Fact witness – An individual, sometimes a clinical professional, who

Has personal knowledge of events pertaining to the case

Can testify as to things they have personally observed or witnessed;

May not offer opinions.
WHAT ROLE CAN YOU PLAY IN COURT
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
Scope - what have you been charged with accomplishing?

By whom – who do you represent? “Agency”

Responsibility - Who are you accountable to?

A client?

The Court?

A third party?

Are you offering information? – “Fact Witness”

Are you offering technical expertise? – “Expert Witness”
DETERMINING YOUR ROLE
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

Specific expertise in some element critical to the facts the Court is deciding. Based on:

Field of expertise

Degree

Experience in the field
Previous experience as an expert



Be prepared to describe in detail
Ability to educate the jury or trier of fact

Disease/problems encountered in the case

How science applies to the instant case

Treatment needs and issues,

Generalizability of treatment progress/gains

Competence

Capacity and capability to perform tasks or roles effectively or within acceptable standards
Expert qualification is subject to challenge by counsel
WHAT COURTS LOOK TO EXPERTS FOR
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
Culture



Therapists are collaborative

Helpers

Advocates

Often believe truth is relative, and is constructed collaboratively

Truth is interpretation of experience

Truth is malleable – therapy alters a person’s “Truth”
Courts are adversarial

Both sides present their best evidence for their theory of the case

Jury or Judge (in a bench trial) is the ultimate “trier of fact”

Truth is not relative, it is made up of immutable facts
Characteristics of the role of aid to the trier of fact

Impartial

Shares information based on

Clarity of role

Experience

First hand observation

Scientific “certainty”
WHAT AFFECTS WHAT HAPPENS TO
THERAPISTS IN COURT?
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

Typical Issues

Parental fitness

Readiness for re-unification

Need for treatment/medication

Progress in treatment

Residency options

Adoptability
Testifying about custody


If the issue the Court is adjudicating is “parental fitness” or determining a child's
physical residence, visitation, therapist doesn’t know best, but may know
something

Therapy requires that the therapist establish a bond = source of bias

Therapy usually lacks sufficient basis for comparing status and stability of others not in treatment
Very specific professional ethical and regulatory requirements
IN CHILD WELFARE CASES (LIONS)
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
64B19-18.007 Requirements for Forensic Psychological Evaluations of Minors for the Purpose
of Dissolution of Marriage, Support, or Time-Sharing Action.

(1) It is a conflict of interest for a psychologist who has treated a minor or any of the adults
involved in a dissolution of marriage, support, or time-sharing action as defined by Chapter
61, F.S., to perform a forensic evaluation for the purpose of recommending a time-sharing
schedule and parenting plan. Consequently, a psychologist who treats a minor or any of
the adults involved in a dissolution of marriage, support, or time-sharing action as defined
by Chapter 61, F.S., may not also perform a forensic evaluation for the purposes of
recommending a time-sharing schedule or parenting plan. So long as confidentiality is not
violated, a psychologist may provide a court, or a mental health professional performing a
forensic evaluation, with factual information about the minor derived from treatment, but
shall not state an opinion about time-sharing schedules and parenting plans.

(2) The psychologist who serves as an evaluator shall not also serve as guardian ad litem,
mediator, therapist or parenting coordinator regarding the children in the instant case. The
psychologist who has had a prior role as guardian ad litem, mediator, therapist or parenting
coordinator shall not serve as an evaluator for the children in the instant case.

Rulemaking Authority 490.004(4) FS. Law Implemented 490.009(1) FS. History–New 6-14-94,
Formerly 61F13-20.007, Amended 1-7-96, Formerly 59AA-18.007, Amended 9-30-04, 12-25-12.
PRACTITIONER REQUIREMENTS - PSYCHOLOGISTS
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
64B4-7.006 Requirements for Evaluations of Minors for the Purpose of Addressing Custody, Residence or Visitation
Disputes.

(1) To perform evaluations of minors for the purpose of making a recommendation regarding custody, residence
or visitation, the licensee shall have:

(a) Competence in performing assessments of a psychological nature on children and families;

(b) Education and training in the areas of child and family development, child and family psychopathology, and
the impact of divorce on children and families; and

(c) Knowledge of the legal standards and procedures governing divorce and child custody.

(2) When providing such evaluation of a minor, the licensee shall:

(a) Be impartial, act in the best interest of the child, avoid conflicts of interest, and not have been the treating
psychotherapist nor had a prior relationship with any of the parties to the evaluation; and

(b) Use multiple avenues of data gathering, including testing and interviewing methods, and shall involve all
persons central to the child in question, including, at a minimum, communication with the child, the parties
seeking custody or visitation, any treating mental health professional, family physician, and relatives of the
immediate families.

Rulemaking Authority 491.004(5) FS. Law Implemented 491.009(2)(s) FS. History–New 12-21-97.
PRACTITIONER REQUIREMENTS – COUNSELORS, SOCIAL
WORKERS, MARRIAGE & FAMILY THERAPISTS
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
American Psychological Association. (2010). Guidelines for Child
Custody Evaluations in Family Law Proceedings. American
Psychologist, Vol. 65, No. 9, 863–867

American Psychological Association. (2011). Guidelines for
Psychological Evaluations in Child Protection Matters.
http://www.apa.org/practice/guidelines/child-protection.aspx

NASW. NASW Standards for Social Work Practice in Child Welfare.
(2013).
http://www.socialworkers.org/practice/standards/childwelfarest
andards2012.pdf
ETHICAL GUIDELINES
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
Role bias in therapy also applies here

Statutory requirements for certain
evaluations (e.g. sex offenders)

Ethical standards for competencies

Violence risk is difficult to predict

Not effectively done within
therapeutic or non-specialized
relationship

Requires multiple data sources
CRIMINAL CASES (TIGERS)
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IMPLICATIONS FOR THERAPISTS (GETTING BACK TO OZ)

Define your role from the point of referral and make it clear to all parties

Be careful about how you




describe your skills and role

formulate opinions

communicate thoughts (there is no thought that is not an opinion or a fact)
Remember you are always on the record,

If the child is your client, don’t opine about the parents

And vice versa

There are no informal opinions

When there are concerns, refer to neutral third party
You can report on attendance and progress with regard to your
treatment and related plan
You can be a fact witness

Report what you have seen and heard directly, rather than opining

Report statements made in therapy, without drawing conclusions regarding

Report one report all, not just those that support one side or the other
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
Requires specialized expertise
allowing you to

Have technical and scientific
knowledge in the specific area
raised in the case

Keep current on research and
evidence based practices and
professional standards

Be able to indicate how that
knowledge applies in this case

Indicate what alternative
hypotheses you have considered
OPINIONS (BEARS) - GUIDING
PRINCIPLES BEFORE YOU HAVE ONE
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
Get releases from client(s)

Work with your agency and its protocols


In some cases your agency’s attorney may work with you
Contact attorney(s) and ask what they want from you

Remember your role and clarify it with attorney(s) - Fact vs expert?

Clarify the limits of what you can say

Know issues being tried or decided

Know laws/Statutes that apply to the case
SUMMARY: WORKING WITH THE COURT
SYSTEM - WHEN YOU GET CALLED
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WORKING WITH THE COURTS - WHEN YOU
HAVE TO GO



Know the system

Adversarial process – between two
theories of a case

It is not you versus them – but it can feel
that way

Don’t be invested in the outcome
You represent a body of knowledge as
it applies to a case

Know the research

Stay current

Know opinions of other experts who may
be in the case
Stay true to your role and expertise,
not a role someone else wants you to
have
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
Prepare, prepare, prepare

Review your excellent work thoroughly & the entire record if others are involved

You cannot testify about others’ work quality or opinions but can be asked to state what the
record says

Review your background so you can present it concisely

Demand that the attorney calling you prepare you to testify


Direct

Cross examination

Decide whether you should sit in on all experts’ testimony – may not be permitted for fact
witnesses
Dress for the occasion (when in Rome…)

Professional

Conservative

Jacket – it’s often cold, shivering looks like nervousness
WORKING WITH THE COURTS PREPARING TO TESTIFY
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
The attorney who called you presents you


Be straightforward
If asked about a lack of a particular credential or
length of experience

Admit

Do not overelaborate

Do not apologize
If you have defined your role from the
outset, no one will be surprised
 Challenges to credentials



Reject the notion that you “should” be
something else in order to have done the work
you are testifying about
Briefly
TESTIFYING: CREDENTIALS
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

Demeanor

Open posture

Be aware of attorneys use of physical space

Use that jacket – don’t sweat or shiver

Make eye contact (attorneys, jury, judge)
Organize your thoughts and documents

Take your time

Make sure you don’t fumble with paper

It’s okay to say, “I don’t know”
TESTIFYING – INTERACTING WITH
ATTORNEYS
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


Responding to questions

Listen,

Understand (pause and reflect – give time for objections),

Don’t argue

Speak plainly; if you need clarification, ask for it

Answer, as briefly as possible

Then shut up

If you are fact witness, don’t slip into expert role
Experts:

Anticipate

Stay away from acronyms or technical terms

Have simple explanations for common terms and phenomena

Use analogies from every day life
Be prepared to be questioned by judge
WORKING WITH THE COURTS TESTIFYING (CONT.)
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


Flattery: The garden path

Being a court “expert” Court and being sought out is flattering,

Don’t fall for it – you will say something that makes you look foolish
Derision: Inducing self doubt

Other side will try to make you look inept, inexperienced, wrong,
ignorant of key facts

Don’t fall for it - or you will
Hypotheticals and possibilities - Don’t get defensive, don’t go too far

Admit the possibility, then make plain why it does not apply, briefly and
non-defensively

Embrace the challenge and take it farther, carefully
TESTIFYING – CHALLENGES (THE REAL
LIONS, TIGERS, AND BEARS)
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

Taking things out of context and generalizing

Provide the context

Indicate the specifics that apply
Rapid-fire questions


Ask for clarification, break them up for you
Let the attorneys do the fighting
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
When you take a client referral make your role clear to all parties

Stick to that role

Document carefully

If called, be informed and inform your agency

Prepare when called


Organize records

Know your limitations
Speak carefully

Breathe

Be proud of who/what you are – don’t diminish or exaggerate

Be brief

You are not the only source the courts will rely on – don’t own the outcome
SUMMARY
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QUESTIONS?
Maggie Labarta, PhD
maggie_labarta@mbhci.org
352.374.5600 ext. 8220
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