Clinicians in court: a guide to subpoenas, depositions, testifying, and everything else you need to know

353 Pages·2012·1.933 MB·English

by  Barsky, Allan Edward

CLINICIANS IN COURT

CLINICIANS
COURT
in
A Guide to Subpoenas, Depositions,
Testifying, and Everything Else
You Need to Know
SeCONd edITION
Allan e. Barsky
The GUILfORd PReSS
New York LoNdoN
© 2012 The Guilford Press
A Division of Guilford Publications, Inc.
72 Spring Street, New York, NY 10012
www.guilford.com
All rights reserved
Except as indicated, no part of this book may be reproduced, translated, stored
in a retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, microfilming, recording, or otherwise, without
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Printed in the United States of America
This book is printed on acid-free paper.
Last digit is print number: 9 8 7 6 5 4 3 2 1
LIMITED PHOTOCOPY LICENSE
These materials are intended for use only by qualified professionals.
The publisher grants to individual purchasers of this book nonassignable permission to
reproduce all materials for which photocopying permission is specifically granted in a
footnote. This license is limited to you, the individual purchaser, for personal use or use
with individual clients. This license does not grant the right to reproduce these materials
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limited to books, pamphlets, articles, video- or audiotapes, blogs, file-sharing sites,
Internet or intranet sites, and handouts or slides for lectures, workshops, webinars, or
therapy groups, whether or not a fee is charged). Permission to reproduce these materials
for these and any other purposes must be obtained in writing from the Permissions
Department of Guilford Publications.
The author has checked with sources believed to be reliable in his efforts to provide
information that is complete and generally in accord with the standards of practice
that are accepted at the time of publication. However, in view of the possibility of
human error or changes in behavioral, mental health, or medical sciences, neither the
authors, nor the editor and publisher, nor any other party who has been involved in
the preparation or publication of this work warrants that the information contained
herein is in every respect accurate or complete, and they are not responsible for any
errors or omissions or the results obtained from the use of such information. Readers are
encouraged to confirm the information contained in this book with other sources.
Library of Congress Cataloging-in-Publication Data
Barsky, Allan Edward.
Clinicians in court : a guide to subpoenas, depositions, testifying, and everything else you
need to know / Allan E. Barsky. — 2nd ed.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-4625-0355-1 (hardcover : alk. paper)
1. Evidence, Expert—United States. 2. Witnesses—United States. 3. Medical records—
Law and legislation—United States. 4. Clinics—Employees—Legal status, laws, etc.—
United States. I. Title.
KF8961.B37 2012
347.73′67—dc23
2011050061
ABOUT The AUThOR
Allan E. Barsky, JD, MSW, PhD, is Professor of Social Work at Florida
Atlantic University, where he teaches graduate courses on professional eth-
ics, conflict resolution, social work practice skills, and substance abuse.
Dr. Barsky received his JD from the University of Toronto, his MSW from
Yeshiva University, and his PhD from the University of Toronto. He has
practiced social work and mediation in legal settings that include the crimi-
nal court in New York and the family courts in New York, Toronto, and Fort
Lauderdale. He serves on the National Ethics Committee of the National
Association of Social Workers, and is a past president of the Ontario Asso-
ciation for Family Mediation. Dr. Barsky’s book credits include Ethics and
Values in Social Work, Conflict Resolution for the Helping Professions,
and Alcohol, Other Drugs, and Addictions. His research has been pub-
lished in Negotiation Journal, Family and Conciliation Courts Quarterly,
Child Welfare, Conflict Resolution Quarterly, and Child and Youth Ser-
vices Review. His research has also been presented at international confer-
ences in London, Helsinki, Jerusalem, and Amsterdam.
v

PRefACe
CAVEAT EMPTOR: The contents of this book are for information
purposes only and should not be construed as providing legal advice.
Laws vary widely among the states, and the only certainty is that
laws will change. Although the strategies in this book may assist you
in handling a specific situation, your only true protection may lie in
obtaining independent legal advice from a properly licensed attorney
who specializes in the areas of law that are pertinent to your case. I
disclaim all legal liability for reliance on any and all material in this
volume.
“Arrgh! What’s with all this legalese—and in fine print and with
Latin, no less! Can’t I ever get a straight answer out of an attorney? They
make everything so complicated. And why do they always have to cover
their backsides with these silly disclaimers?”
I confess: Law is complicated. Easy answers are possible. However,
easy answers are possibly misleading. I do not want to expose myself to
a lawsuit, but I also don’t want to mislead or expose you to legal liability.
With all these disclaimers, what good is this book? The “aforementioned
disclaimer notwithstanding,” I have tried to write this book with plain
language descriptions of the law, legal processes, and your potential roles
within these processes. My hope is that you can use this book:
••To gain general professional knowledge.
••To learn how to inform clients about the legal implications of their
vii
viii Preface
relationship with you (either as a treating clinician or as a profes-
sional who evaluates clients from psychological or social perspec-
tives).
••To prepare for or avoid situations in which you may be called to
testify as an expert or non-expert witness.
••To prepare for a particular court action or adjudicative proceeding
in which you have been called to testify.
••To devise strategies to deal with emotional and stressful situations
that may arise in the course of the legal proceeding.
••To develop agency policies on confidentiality, privileged informa-
tion, record keeping, and responding to subpoenas.
••To assist other clinicians who may be called to give evidence in a
proceeding.
This book is designed not only to increase your comfort with legal
processes and terminology, but to help you ask informed questions when
seeking legal advice. The practical tips can help you present your evidence
more effectively. Since this is not a cookbook, do not follow the tips by rote.
Reflect on your role and context, as well as whether a particular suggestion
fits with your circumstances.
The law and our involvement in legal processes are dynamic. The
rules and case law governing testimony and witnesses change over time
and across jurisdictions. Yet, while the law is dynamic, any book offering
advice on how to address a dynamic system is static. I cannot anticipate
how statutes, case law, or codes of ethics will change. I can only discuss
what exists today. Many details have been omitted so as not to overwhelm,
but also so as not to misinform. Given that laws vary across states and
over time, this book focuses on legal principles. As a witness, you do not
need to be an attorney with a 3-year law degree. You may need to hire an
attorney to help you understand complicated and changing laws, as well as
the specifics of a particular case.1 Rather than taking the information in
this book as absolute, use it to guide questions. For example, you can take
recommendations for preparing reports to your attorney and ask whether
she2 believes these apply to your situation.
In my attempt to provide interesting, realistic, and thought-provoking
examples, some questions and illustrations ask you to ponder choices that
1 Another benefit of retaining properly licensed legal counsel is that the attorney will have liabil-
ity insurance to cover damages you may incur as a result of negligent errors or omissions by the
attorney.
2 For ease of reading, I will alternate the use of male and female pronouns for various paragraphs
and topics rather than use s/he or other language to cover both genders for each situation.
Preface ix
verge on the unethical, or are, in fact, unethical. In practice, there may be
occasions when you feel pressure to act in a manner that is not completely
honest, legal, or ethical. By working through these examples I hope you
will gain the insight and moral fortitude to do the right thing when such
dilemmas arise.
I have tried to make this book readable for nonattorneys. Still, I have
used some legal jargon to help you become more conversant with communi-
cation in legal arenas. The Glossary at the end of this volume provides defi-
nitions of these legal terms, and the Index can be used to locate further uses
of these terms. The Resources section includes websites for professional
associations and legal databases that you can use to do further research
(especially access to state and federal laws).
Each attorney may have his own suggestions and advice. If his advice
seems inconsistent with something you have understood from this book,
ask questions to clarify and work toward a mutual understanding of the
issues. You will be in a better position to heed your attorney’s advice if
you are better informed. Your attorney may also have her own suggestions
for further reading. For example, some attorneys provide witnesses with a
memorandum of how to prepare for a hearing. In the Appendices of this
volume, I provide sample documents that you may find useful for your own
practice. Your attorney may be able to comment on these documents or
provide you with additional samples that meet the specific needs of your
case and jurisdiction.
Those who have read the first edition of this book will notice a num-
ber of changes. First, although Jonathan Gould, my coauthor on the first
edition, is not an author on this edition, I sincerely thank Jon for all of his
contributions, many of which continue to be expressed in this second edi-
tion. Jon has incredible experience and knowledge in forensic practice, par-
ticularly in the field of family law. Among the other changes in this book
are the updates in research, case law, statutes, and practice. For instance,
research on mock juries and interviews with actual jurors has shed light on
strategies that witnesses can use to ensure their testimony comes across as
credible and persuasive. In addition, the role of clinicians as trial consul-
tants has developed as an area of specialized practice. Traditionally, attor-
neys decided whom to call as witnesses, how to present evidence, and how
to prepare witnesses. With the growth in research and interest in forensic
practice among mental health professionals, clinicians now provide attor-
neys with greater assistance in these matters.
This edition pays greater attention to ethical issues, including the dis-
tinctions between a treating clinician and a professional who has been hired
specifically to conduct a forensic evaluation. In response to comments and
feedback from readers of the first edition, I have added “Appendix G: For