In a previous post on how to avoid legal problems when engaging in a new counseling relationship, we mentioned that you never know when a client will become involved in a legal dispute, like a divorce or a child custody case, that will require your participation. Because of that, it's critical to keep client records which might be needed in a legal case.
Tips for Testifying Lesson 9: The Role of the Counselor in Child Custody Evaluations
What is a custody evaluation?A “custody evaluation" means a court ordered evaluative process through which information, opinions, recommendations and answers to specific questions propounded by the court in its order may be provided to the court, the parties, the parties' attorneys and any person appointed by the court. These will be opinions and information regarding:
- conservatorship of a child including terms and conditions thereof;
- possession of or access to a child, including terms and conditions thereof;
- conditions for therapeutic services; and
- any other issue affecting the best interests of a child.
When does a custody evaluation occur?The court may order the preparation of a child custody evaluation concerning:
- a child who is the subject of a suit;
- a party to the suit;
- the home of any person requesting conservatorship of, possession of or access to a child; and
- any other issue or question requested by the court or agreed upon by the parties prior to or during the evaluation process.
What is included in a custody evaluation?It is recommended that the child custody evaluator perform, at a minimum, all of the following:
- review relevant information gathered from collateral sources;
- review relevant school records;
- review relevant mental and physical health records of the parties and any child subject of the suit;
- review relevant records of Child Protective Services (CPS);
- interview all adults living in the home;
- interview, in a developmentally appropriate manner, each child who is the subject of the suit, who is at least four years of age;
- observe each child who is the subject of the suit, regardless of the age of the child;
- observe any party to the suit with each child who is the subject of the suit;
- assess the relationship between each child at issue in the suit and each party seeking possession of or access to the child; and
- conduct any further tasks specified by the court or agreed to by the parties.
- conduct a visit to one or more party's home;
- conduct a joint interview with the parties;
- observe each child who is the subject of the suit with any adult living in the home;
- interview or observe any child who is not the subject of the suit living, on a full or part time basis, in the home;
- conduct valid and reliable psychological testing; and
- review any other information the court deems relevant.
Lesson 8: How to Anticipate and Avoid Legal Problems When Engaging in a New Counseling RelationshipThe key to avoiding problems with your clients is to recognize the potential for problems before they actually occur. Your engagement letters and forms lay the groundwork, create the expectations, and establish the nature of the relationship between you and your client. Therefore properly drafted documents are key to the success of your practice. Below are some important elements to consider adding to your engagement letters.The nature of your relationship. If your role is intended to be that of a therapist, make sure that role is clearly spelled out. Explain to the client that your goal and professional obligation is to assist those that you are working with in their personal and interpersonal functioning and to serve in a helper role. Further explain that this role may involve assessment of current functioning, individual and/or family psychotherapy, and other interventions targeted at helping resolve the issues that clients bring to your sessions. Make it clear that you are not hired to perform a forensic evaluation or to make recommendations to the court.Related documents and data collection. Collect and retain additional forms and documents necessary to gather information, authorize treatment and explain the details of your relationship with the client. These documents may include a client intake form, consent for treatment of a minor (if a child or children are involved), client information and consent form, statement regarding court involvement, notice of privacy practices, receipt of acknowledgment of notices, and release of information forms.Statement Regarding Court Involvement. Make it very clear to your client what will happen if you are called to court to testify. Explain to your client that you can only testify to the facts of the case and to your professional opinion, within the scope of the services you have provided.Advise your client that if you are to receive a subpoena then the lawyer or their staff will need to call the office and set up a time for the subpoena to be served. Request a reasonable number of days notice of any court appearance, so that schedule changes for your other clients can be made within a reasonable time frame. If a subpoena is not received within that minimum number of days advise that an additional "express charge" will be added.Quote your rate for any requested appearance, subpoenaed appearance, settlement conference, or deposition. Consider quoting a minimum three or four hour appearance fee for court appearances. You can also consider quoting fees for preparation time, report writing, and production of documents (as outlined in a client information and consent form) that may apply as well. It is essential that your client read and understand the statement regarding court involvement and that he or she signs that agreement individually and/or on behalf of their child.These are, of course, merely suggestions. You must decide what other terms and conditions and notifications are most important. The important thing is that you consider the implications of potentially being called to testify regarding a client, and lay the appropriate groundwork and documentation at the beginning of your professional relationship.Continue on with us next time for Lesson 9, where we'll look at what is required of the counselor in child custody evaluations.
Lesson 7: 10 Essential Differences Between a Therapeutic and a Forensic Relationship[table id=1 /]
Lesson 6: Who Is Qualified to Testify as an ExpertJust because a person is an expert in a particular field does not necessarily mean they are legally considered an expert. The legal system has a specific set of guidelines to determine when a person is an expert witness who can give opinion testimony.
What is an Expert Witness?An expert witness is allowed to provide a scientific, technical, or other specialized opinion about the evidence or a fact issue based upon their qualifications, knowledge, skill, experience, training, or education. The rationale behind this is that the opinion of a person with specialized training or education, such as a scientist, will be of more value to the judge and jury in deciding the case.Expert witnesses are persons who are qualified, either by actual experience or by careful study, to form definite opinions with respect to a division of science, a branch of art, or a department of trade. The law deems persons having no such experience or training to be incapable of forming accurate opinions or drawing correct conclusions. Thus, if scientific, technical, or other specialized knowledge will assist the trier of fact (the judge or jury) to understand the evidence or to determine a fact in issue, a witness who has been qualified as an expert may testify in the form of an opinion or otherwise. To allow the expert testimony, three criteria must be met: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.
Qualifying an Expert WitnessCourts do not apply a rigid rule in determining whether a particular witness is qualified to testify as an expert. Instead, an expert's qualifications are normally evaluated on a witness-by-witness basis, according to the facts and issues of each case. The process of determining that a particular person is permitted to give expert testimony is known as "qualifying" the witness.Several courts have stated that the true criterion in determining the qualification of expert witnesses is not whether they employ their knowledge and skill professionally or commercially, but whether the jury can receive appreciable help from them on the particular subject in issue. Many courts also require the witness to exhibit sufficient knowledge of the subject matter before his or her opinion to go to the fact finder (the judge or jury).The qualifications of an expert witness must be carefully scrutinized by courts to guard against charlatans who may give erroneous testimony without a sound foundation, thus misleading the judge or jury. Most courts will more closely scrutinize the qualifications of witnesses seeking to testify as experts if they have never been found qualified to give expert testimony on a prior occasion. However, primary reliance is not placed on the fact that it may be the expert's first time on the witness stand. Conversely, the fact that a witness has been previously qualified to give expert testimony on the subject matter in question is typically irrelevant to his or her qualifications for giving expert testimony in a subsequent case.
Kinds of Expert TestimonyThere are two general classes of matters as to which expert testimony is admissible: (1) matters as to which the conclusions to be drawn by the jury depend on the existence of facts that are not common knowledge and that are specifically within the knowledge of persons whose experience or study enables them to testify with authority on the subjects in question; and (2) matters as to which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend on professional or scientific knowledge not within the range of ordinary training or intelligence. In the first class, the facts are stated by the experts, and the conclusion is drawn by the jury. In the second class, the expert sets forth the facts and states a conclusion in the form of an opinion which may be accepted or rejected by the judge or jury.Expert testimony can be extremely useful to the judge and jury as they try to make legal decisions on topic they may not be familiar with. However, it is essential that courts make sure an expert is properly qualified before he or she gives testimony on their opinions or conclusions.Next time: we'll talk about how to recognize and avoid dual roles, in 10 Essential Differences Between a Therapeutic and a Forensic Relationship.
Lesson 5: Lay Testimony, Expert Testimony, and the Mental Health ProfessionalGenerally speaking, the law of evidence in both civil and criminal cases confines the testimony of witnesses to statements of concrete facts within their own observation, knowledge, and recollection. That means that witness testimony must normally state direct, observable first-hand facts perceived by the witnesses' use of their own senses, and are not permitted to give testimony on their opinions, inferences, impressions, and conclusions drawn from the facts.
Lay Witnesses and Expert WitnessesA witness is any person who testifies under oath in a trial or a deposition in a lawsuit. Those who testify in court essentially fall into two categories: expert witnesses and lay witnesses. By definition, a lay witness is any witness who is not qualified to testify as an expert on a particular subject. Unlike an expert witness, a lay witness does not testify based on any education and a lay witness' opinion must not be based on knowledge outside the understanding of the ordinary person. Generally speaking, a mental health professional, such as a counselor or a therapist, will be testifying as a lay witness, and will only be able to state the facts, not his or her opinions about or conclusions from those facts.
When Lay Witnesses Can Give Opinion EvidenceIn certain instances, however, the law allows lay witnesses to provide their opinions on the stand. A lay witness may testify in the form of opinion if the opinion is rationally based on the perception of the witness, and is helpful in understanding his or her testimony or in determining a fact. Lay witness opinion is admissible so long as it would be helpful to the fact finder (the judge or jury) and is rationally based on personal perception.This rule recognizes that a lay witness' opinion can be more helpful at times than the raw data on which the opinion is based. An opinion is often a convenient shorthand device. For example, testimony that a person was "excited" or "angry" is more evocative and understandable than a long, physical description of the person's outward manifestations. Additionally, lay witnesses who have had an opportunity to observe a particular vehicle in motion are normally permitted to testify that it was traveling at a great rate of speed or that it was going pretty fast. Lay witnesses are also normally allowed to give their opinion as to the height, weight, quantity, and dimensions of things, even if their testimony is not precise.
The Role of Mental Health ProvidersMost mental health providers provide counseling services to individuals and families in their role as a therapist. This treatment is provided without expecting or intending to testify in court, because the therapist's primary goal is to serve in a help role, assisting those with whom he or she is working with their personal and interpersonal functioning. This generally involves assessment of current functioning, individual and/or family psychotherapy, and other interventions targeted at helping to resolve the issues that clients bring to therapeutic sessions. Professional ethical requirements are unequivocal that mental health providers shall not have any other relationship with their clients other than in their role as a professional counselor. This means that therapists are not ordinarily hired to perform a forensic evaluation (such as a custody evaluation, social study, or other court–related assessment), and cannot, therefore, volunteer to the court their recommendations regarding issues of child custody or other such legal questions.A mental health provider's role in the courtroom -- whether they are there at the patient's request or under order of the court -- is to provide information regarding client progress in counseling and other information related directly to your sessions with the client or his or her family. As such, a therapist or counselor should not provide expert testimony unless hired specifically in the capacity as a forensic expert in a case. Accordingly, never provide any opinion or recommendation on an ultimate issue in a case unless specifically ordered to do so at the commencement of a case.Next time, we'll go further into this topic, looking at when witnesses can provide expert testimony, and what limitations apply.
Lesson 4: Direct and Cross Examination of WitnessesDuring a trial, the presentation of evidence begins when the attorney for the plaintiff (the person suing) initiates his case and begins calling witnesses. The plaintiff's attorney does the initial questioning of the witness, which is called direct examination, and then the attorney for the defendant (the person being sued) responds with his or her cross-examination questions.
Direct ExaminationThe purpose of direct examination is to get the witness to testify about facts that support the plaintiff's case. There are rules of evidence, which govern the admissibility of testimony and what kinds of questions can and cannot be asked.
Types of Questions During Direct ExaminationThe judge has some control over an attorney's examination of witnesses and can dictate the form of the questions presented to the witness. The judge has discretion to stop repetitive or annoying questioning. An attorney may not ask his or her own witness a leading question -- that is, a question which implies, suggests, or prompts the witness to give a particular answer. A witness can be asked to identify demonstrative evidence such as documents and photographs. Generally, a witness cannot give an opinion or draw a conclusion from the evidence unless he/she has been qualified as an expert witness. The defendant's attorney can make objections to the witness's testimony, based on the rules of evidence. The judge either sustains (grants) the objection, or overrules (denies) it and allows the witness to answer the question.
Cross-ExaminationAfter the plaintiff's attorney has finished questioning the witness, the defendant's attorney has the opportunity to cross-examine the witness. Cross-examination is a fundamental right in our system of justice. Generally, cross-examination is limited to matters brought out during the direct examination of the witness, so that if the plaintiff's attorney hasn't covered a particular subject on direct examination, the defendant's attorney can't bring it up. The attorney may ask leading questions during cross-examination.
Challenging a Witness's Credibility on Cross-ExaminationDuring cross-examination, the attorney tries to undermine or impeach the witness's credibility and show that the witness is not reliable. The attorney might try to show that the witness is biased or prejudiced toward a party in the case. Another way to undermine the witness's credibility is to show that the witness has a stake in the outcome of the case, which might influence his or her testimony. The attorney can also question the witness about any felony criminal convictions on the witness's record, or about any crimes involving dishonesty. Just as on direct examination, the opposing party's attorney can raise objections to the questions posed to the witness, and the judge then rules on the objection.
Redirect and Recross ExaminationFollowing cross-examination of the witness, the plaintiff's attorney has an opportunity to ask the witness additional questions, called redirect examination. After this, the opposing attorney can conduct a recross examination of the witness.
Defendant’s CaseOnce the plaintiff's attorney has called all of the witnesses on behalf of the plaintiff, the defendant's attorney begins calling his or her witnesses. The same procedure is followed as in the plaintiff's presentation of witnesses. The defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney cross-examines the witnesses.Although these back-and-forth rounds of questions can seem overwhelming, they're an important part of our justice system, designed to elicit facts for the judge and jury in the most fair way possible. The next lesson in this series will discuss when a witness is allowed to express an opinion on the facts, in distinguishing lay testimony from expert testimony.
Lesson 3: Watching Out for Trick QuestionsFor many witnesses, their anxiety about giving testimony in a courtroom is primarily a fear of responding badly to a trick question from the opposing attorney. Here are the most common kinds of trick questions lawyers use, as well as how to successfully handle them.
Compound QuestionsThese are questions that contain two (or more) questions disguised as one. By giving an answer to one of the questions, you may accidentally be binding yourself with an answer to the first question as well. To spot a compound question, listen carefully to the entire question and determine whether the attorney is really making more than one inquiry.For example: "Wouldn't you agree that the stop sign was clearly visible and that it had been raining for several hours at the time of the accident?" If you suspect that a question may be compound, say to the attorney, "that sounds like more than one question, would you mind breaking it down for me?" Keep asking until you feel comfortable that only one question is being asked.
Questions that Assume Facts that Aren't TrueBe careful that the opposing attorney does not try to slip a false statement in with the question. By answering the question, you may inadvertently be making an admission that the false statement is true.Consider, for example: "After the car in front of you put on his turn signal, describe to me the chain of events that led to the wreck." If the driver in front of you did not really turn on his signal, then answering the question without clarifying that fact could be dangerous. Don't get caught up in the question and forget about the statement. If you think a question has assumed a fact that is not true, simply reply: "First, Mr. Smith, let me make it very clear that the driver in front of me never turned on his turn signal, so it's not really possible for me to answer the question the way you asked it. I would be happy, however, to describe to you the events that led to the wreck."
Summary QuestionsBeware of the opposing attorney asking a blanket question that summarizes your testimony and then asking you if you agree with his statement. "Let me make sure I understand, you're saying that A, B, C, D, X, Y, and Z. Is that right?" Often times, the attorney's summary is inaccurate and thus you may be agreeing to something that is not true. Make sure you listen carefully to each part of what the attorney is saying, and if you feel like he or she has not fairly characterized your testimony, do not agree with the attorney's statement.Our next lesson will dive deeper, providing useful information and tips on direct and cross-examination of witnesses.
- Do Not Exaggerate. Specifically, do not make over-broad statements that you may have to correct. Be particularly careful in responding to a question that begins “Wouldn’t you agree that . . .?” The explanation should be in your own words; do not let an attorney put words in your mouth.
- Explain your answer if necessary. Give the answer in your own words, and if a question can’t be truthfully answered with a “yes” or “no” answer, explain the answer. If an attorney demands a “yes” or “no” answer and you can not give one, let the judge know that, and explain that to do so would be misleading to the court or inaccurate.
- If your answer was not correctly stated, correct it immediately. If your answer was not clear, clarify it immediately. It is better to correct a mistake yourself than to have the attorney discover an error in your testimony. If you realize you have answered incorrectly, simply say “May I correct something I said earlier?”
- Don't get flustered by inconsistent testimony. Sometimes, witnesses give inconsistent testimony, where something they said before doesn’t agree with something they said later. If this happens to you, don’t get flustered. Just explain honestly why you were mistaken. The judge or jury, like the rest of us, understand that people make honest mistakes. Stop instantly when the judge interrupts you, or when an attorney objects to a question, and wait for the judge to tell you to continue.
- Keep it to yourself. The judge and the jury are interested in the facts that you have observed or personally know about. Therefore, don't give your conclusions and opinions, and don't state what someone else told you, unless you are specifically asked. If you're going to be asked about your conclusions and opinions, a good attorney should let you know that they will be looking for "expert witness" opinion from you so that you can prepare for that in advance.
- Give positive, definite answers when at all possible. Avoid saying "I think," "I believe," or "in my opinion" if you can be positive. If you do not know, or cannot remember, say so. Do not guess or make up an answer. You can be positive about important things which you naturally would remember. If you are asked about little details which a person naturally would not remember, and you're unsure of the answer, it is best just to say so.
- Unless you're absolutely certain, don't say "That's all of the conversation" or "Nothing else happened." Instead say, "That's all I recall," or "That's all I remember happening." It may turn out that after more thought or another question, you will remember something important.
- Beware of the trap where an opposing attorney asks "Have you told me everything" or "Is there anything else you want to add to the record?" In all probability you have not been asked about everything possible. The best response is to say, "I believe I have answered your questions to the best of my ability."
- If there is an objection, stop speaking, and wait until the judge has ruled on the objection and has provided instructions as to whether or not you should respond.
- Sometimes an attorney may ask this question: "Have you talked to anybody about this case?" If you say "no," the judge or jury knows that doesn't seem right, because an attorney usually tries to talk to a witness before he or she takes the stand, and many witnesses have previously talked to one or more police officers, counselors, or social workers about the case, depending on the issues. In a criminal trial, it is perfectly proper for you to have talked with a civil attorney, the prosecutor, police or others before you testify, and you should, of course, respond truthfully to this question. Say very frankly that you have talked with whomever you have talked with – the attorney, the victim, other witnesses, relatives or anyone else. All you need to do is to tell the truth as clearly as possible.
- Ask for assistance. Tell the judge if you need assistance, for example a glass of water, a break to use the bathroom (if testimony takes a particularly long time), or if you need some other accommodation.
- After a witness has testified in court, he or she should not tell other witnesses what was said during the testimony until after the case is over. Therefore, it's very important that you do not ask other witnesses about their testimony and do not volunteer information about your own.
Lesson 1: The BasicsTestimony is evidence given by a competent witness under oath. A witness is competent if he or she can communicate effectively on the stand and understands the duty to tell the truth. A witness may be called to give testimony only on evidence about which he or she has personal knowledge. Testimony is typically delivered orally by a witness at trial, or in writing in the form of an affidavit or a deposition.
- Appear and behave professionally. This applies both on the witness stand and off. Obviously your demeanor influences the jurors, but you never know who else is "sizing you up," on or off the stand.
- Before the trial starts, arrive at the courtroom early and familiarize yourself where the witness chair is located and the path you need to take to get to it. This enables you to walk directly to the stand in a forthright manner and be sworn in.
- Dress professionally. Men and women should dress in a conservative fashion. Dress neatly and avoid flashy jewelry and colors.
- Speak clearly and confidently.
- Once you are seated, sit up straight and look at the questioning attorney. When answering questions, make eye contact with the judge or jurors.
- Do not read, chew gum, eat, drink, smoke, or have conversations in the courtroom.
- Show respect and be courteous. Address the judge as “Your Honor” and the attorneys as “Mr.” or “Ms.”
- Avoid distracting mannerisms such as chewing gum, twirling your hair, or fidgeting with your hands while testifying.
- Present your testimony clearly and slowly. Speak loudly enough so that the judge, court reporter, and juror furthest away can easily hear and understand everything you say.
- Listen very carefully to the question, and make sure you understand it before you answer.
- If either attorney objects, stop talking, let the judge rule on the objection, and then continue.
- Avoid being combative. Let the attorneys get as nasty as they want. They're more than likely trying to "bait you." You stay cool and answer the questions.
- If you make a mistake, admit it. Don't try to cover it up. Nobody is going to hold it against you that you made a mistake, but they will certainly hold it against you if they think you're lying.
- Speak in your own words. Be yourself and don’t try to memorize your testimony. Know your facts, but don't try to say things word for word. You will look rehearsed during your testimony and then will not be able to handle cross examination, where the questions are out of sequence.
- If the other side asks a question that you think is objectionable, pause before answering and give your attorney a chance to object. If he doesn't, answer the question. If either attorney objects, stop your answer and wait for the judge to tell you to proceed.
- Most important of all, tell the truth and never exaggerate. Avoid the temptation to embellish the truth just a bit. It's not necessary and if you're caught it makes your whole testimony suspect.
- Do not nod your head to reply to a “yes” or “no” question. Speak so that the court reporter (or recording device) can hear your answer.
- Answer only the question that is asked. Listen carefully to what is asked, and don't hesitate ask for the question to be repeated or rephrased. You cannot answer a question that you do not understand. Do not volunteer information that is not asked for.
- TELL THE TRUTH. Every true fact should be readily admitted. Do not stop to figure out whether your answer will help or hurt either side. Just answer the question to the best of your recollection.