9 Tips for Psychotherapists Providing Court Testimony
#2 — Do not look at notes on the stand without permission from the judge.
Posted Nov 21, 2020
In the course of professional practice as a mental health professional, I have responded to many subpoenas and been questioned in the process of legal discovery numerous times. I have only provided testimony on the stand in court twice, but over the past nearly two decades, I have advised and observed untold therapists who have done so and participated in many sessions of preparation with attorneys providing legal counsel. I have edited countless written letters of report that have influenced court opinion. I have done so in especially close partnerships with child dependency stakeholders and juvenile justice systems in Texas and Washington State and within the military justice system.
I have learned how important it is that clinicians become familiar with relevant laws and regulations, as well as the respective codes of ethics established for their professional practice. As a licensed marriage and family therapist, for instance, I am clear that the Code of Ethics established by the American Association for Marriage and Family Therapy (AAMFT) empowers MFTs to “perform forensic services which may include interviews, consultations, evaluation reports, and assessments both formal and informal” (AAMFT Code of Ethics 7.1) and cautions that when providing “expert or fact witness testimony in legal proceedings,” therapists should “avoid misleading judgments, base conclusions and opinions on appropriate data, and avoid inaccuracies insofar as possible,” further clarifying, “When offering testimony, as marriage and family therapy experts, they shall strive to be accurate, objective, fair, and independent” (AAMFT Code of Ethics 7.2). And so on.
Let me be clear: I have no formal forensic training and nothing I communicate here should be misconstrued as legal advice. All that being said, here are a few notes of guidance many clinicians may find helpful. I have collected these insights over time on the basis of legal counsel as well as on my own personal experience supervising mental health professionals as they provided legal testimony. Ultimately, these nine tips constitute my best advice for psychotherapists providing court testimony.
#1 — Prepare notes from the chart with all objective data, such as the date services were initially requested, dates of services with a description of service type (e.g. intake assessment), with information regarding specific dates of attendance and dates and clarifying information regarding no-shows and cancellations, diagnostic information, effective dates and components of treatment plans, clarification of therapeutic modalities utilized, and information, including dates, regarding any transfers and/or process of attempts to contact and discharge and closure. Under subpoena, if asked, provide this information.
#2 — Do not look at notes on the stand during a trial without first requesting permission from the judge to review your notes, at which point you will be provided or denied permission to do so.
#3 — Be prepared to cite specific dates and information regarding your own college degrees, credentialing, training related to specific treatment modalities, publications, employment date ranges, titles, and scope of role, as well as clear, concise explanations of modalities utilized.
#4 — Declare the limits of your competencies and information, and take care that the statements you make remain within those limits. Stay in the moment of what you have seen and heard from clients, and within the scope of treatment, without speculating about goings-on outside of treatment sessions, about which you can only report what has been reported to you.
#5 — Regardless of pressure: Breathe deeply while reflectively formulating and articulating responses. If you are confused, it is perfectly acceptable to ask attorneys to repeat or clarify their question.
#6 — Respond objectively, whenever possible—answering only “yes” or “no” to “yes or no” questions.
#7 — Respond “that is outside the scope of my credentialing or employment or practice,” or “that is beyond the scope of the treatment I was providing,” as appropriate.
#8 — Provide clarification of limits of scope with, “I was not assessing for that,” “I did not provide a parenting assessment,” “I do not have enough information to make a determination,” “I do not know,” “I do not remember,” or “I would need to consult the chart.” You get the idea.
#9 — Most mental health treatment providers are facts witnesses, not expert witnesses—unless specifically contracted and paid to act as an expert witness; be very cautious about engaging in any form of clinical speculation about a particular case regarding what may have happened in the past or could happen in the future, or in making generalized assertions regarding, for instance, trauma, mental health disorders, treatment, or treatment efficacy—unless you have clearly established expertise in this area, on the basis of significant and formal research and practice in a given subdiscipline.
Beyond these tips for providing testimony, it is important generally to maintain careful boundaries. When therapists do become forensic evaluators for clients they also see for therapy, they will later find, nearly inevitably, that the conflicts of interest that will be nearly impossible to perfectly navigate would have been avoided entirely by the simple refusal to provide disparate services to the same client. AAMFT Code of Ethics 7.6 clearly guides, “Marriage and family therapists avoid providing therapy to clients for whom the therapist has provided a forensic evaluation and avoid providing evaluations for those who are clients, unless otherwise mandated by legal systems.” 7.7 further clarifies, “Marriage and family therapists avoid conflicts of interest in treating minors or adults involved in custody or visitation actions by not performing evaluations for custody, residence, or visitation of the minor.” Other professional associations offer similar cautions.
If subpoenaed to appear in court or provide any form of legal testimony, it is important to notify the client as soon as possible. When possible, clinicians should ensure a client comprehends the potential benefits and liabilities of their mental health information being disclosed in a courtroom.
This article also appeared in the May/June 2020 issue of Family Therapy Magazine. Reprinted courtesy of the American Association for Marriage and Family Therapy. In accord with ethical standards, client identity has been protected through alteration of identifying details.
American Association for Marriage and Family Therapy. (2015). AAMFT Code of Ethics. Retrieved from https://www.aamft.org/Legal_Ethics/Code_of_Ethics.aspx.