The Portable Guide to Testifying in Court for Mental Health Professionals An A–Z Guide to Being an Effective Witness Barton E. Bernstein, JD, LMSW and Thomas L. Hartsell, Jr., JD J OHN W ILEY & S ONS , I NC . ffirs.qxd 5/6/05 3:27 PM Page iii ffirs.qxd 5/6/05 3:27 PM Page vi The Portable Guide to Testifying in Court for Mental Health Professionals ffirs.qxd 5/6/05 3:27 PM Page i Other Books by the Authors The Portable Lawyer for Mental Health Professionals: An A–Z Guide to Protecting Your Clients, Your Practice, and Yourself, second edition (2004), John Wiley & Sons, Inc. The Portable Ethicist for Mental Health Professionals: An A–Z Guide to Responsible Practice (2000), John Wiley & Sons, Inc. The Pocket Manual for Mental Health Professionals, a Compendium of Answers to Questions Most Frequently Asked by Professional Counselors, Social Workers, Psychologists, Marriage and Family Counselors, Family Therapists, Pastoral Counselors, Addictions Counselors, and Others (2000), T. L. Hartsell Jr. and Barton E. Bernstein (214-363-0555, tlhartsell2@aol.com). ffirs.qxd 5/6/05 3:27 PM Page ii The Portable Guide to Testifying in Court for Mental Health Professionals An A–Z Guide to Being an Effective Witness Barton E. Bernstein, JD, LMSW and Thomas L. Hartsell, Jr., JD J OHN W ILEY & S ONS , I NC . ffirs.qxd 5/6/05 3:27 PM Page iii Authors’ note: Sample forms should be used only after careful review by a local lawyer. Jurisdictions differ in their technical and legal requirements, and every health professional should use forms specifically drafted for each individual practice, organization, or agency. This book is printed on acid-free paper. Copyright © 2005 by John Wiley & Sons, Inc. All rights reserved. Published by John Wiley & Sons, Inc., Hoboken, New Jersey. Published simultaneously in Canada. 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For general information on our other products and services please contact our Customer Care Department within the United States at (800) 762-2974, outside the United States at (317) 572-3993 or fax (317) 572-4002. Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. For more information about Wiley products, visit our web site at www.wiley.com. Library of Congress Cataloging-in-Publication Data: Bernstein, Barton E. The portable guide to testifying in court for mental health professionals : an A-Z guide to being an effective witness / Barton E. Bernstein and Thomas L. Hartsell, Jr. p. cm. ISBN-13 978-0-471-46552-2 (pbk. : alk. paper) ISBN-10 0-471-46552-6 (pbk. : alk. paper) 1. Evidence, Expert—United States. 2. Forensic psychology—United States. 3. Mental health personnel—Legal status, laws, etc.—United States. I. Hartsell, Thomas L. (Thomas Lee), 1955– II. Title. KF8965.B47 2005 347.73′67—dc22 2004065766 Printed in the United States of America. 10987654321 ➇ ffirs.qxd 5/6/05 3:27 PM Page iv Dedications To my wife, Donna, for her constant inspiration and affection, with deepest love and appreciation. To mental health professionals all over the world who dedicate themselves to alleviating stress, suffering, and personal difficulties. To my children, Alon, the merchant; Talya Bernstein-Galaganov, the lawyer; and son-in- law Dr. Misha Galaganov, the musicologist. May they someday point out these books to my grandchildren and emphasize their contribution to the world, be it ever so humble. To my sisters, Rona Mae Solberg and Berna Gae Haberman, and brother-in-law, Wolf (Bill) Haberman. In loving memory of the past generation, my mother and father, Suetelle and Samuel Bernstein; my aunts and uncles, Anita and Irving Bloch and Miriam (Mickey) and Sidney Springer; and my late brother-in-law, Myron (Mike) Solberg. To my good friend and colleague, Tom Hartsell, who took up the legal baton and ran with it to ever-lofty heights as an outstanding lawyer, professor, mediator, community leader, author, and role model for future generations. BEB To the mental health professionals who dedicate their lives to improving the human condi- tion in the face of declining revenues, increased regulation, and administrative complexities. Unlike the IRS, the world is not becoming a kinder and gentler place, and the number of peo- ple in need of competent and caring mental health services is increasing every day. It has been our goal to assist the mental health community in a small way with the good work that it does. We want to help keep mental health professionals in business and providing the vital and underappreciated services our society so badly needs. So to all of you, this book is for you. Bless you. To my mentor and friend, Bart Bernstein, who is 75 years young and still an inspiration. This book has been Bart’s labor of love and a long time coming. Bart, I know I can never thank you enough or repay you for all you have done for me and taught me but know that I appreciate all of it and will be forever grateful. Signed, Your Greatest Admirer. To my beautiful wife, Barbara, who knows only too well how much time and energy my professional life demands of me and our relationship, but who supports and comforts me and makes my life complete. Thank you, Darlin’, from the bottom of my heart, for putting up with me and loving me. To my parents, Tom and Julie Hartsell, I owe you everything. The best in me can be traced directly to you. I love you guys. May your golden years be blessed and happy. To Ryan and Jason, my fine young sons, and Glenn and Chandler, my fine young stepsons, who have all become fine young men. The world is your oyster; relish it and revel in it. To Bill and Paula Edwards, my wonderful inlaws, for their gift of Barbara, and all their friendship and support. I love you both. May your golden years be blessed and happy as well. Last but not least, I want to give a big shout out to my pal Dexter, my Jack Russell (excuse me, Parson Russell) Terrier, who is asleep at my feet as I write this. Ol’ Dex warms my heart with his every look and action. He puts meaning in the phrase “man’s best friend” for me. He is my joy. TLH ffirs.qxd 5/6/05 3:27 PM Page v ffirs.qxd 5/6/05 3:27 PM Page vi 0vii Preface When one of the authors, Bart Bernstein, began practicing law in the 1960s, the courtroom witness was treated with respect and kindness. After taking the witness stand and providing a brief intro- duction concerning his or her experience, the mental health profes- sional proceeded to testify about the facts as he or she knew them and to offer an opinion concerning those facts. The lawyers, awed by the intellectual competence and knowledge of the expert, would rarely challenge the testimony of the learned specialist whose sage- like words, after a few perfunctory questions, would be accepted as gospel. Lawyers considered it bad taste to challenge the credentials, experience, education, or conclusions of experts. After all, if the ex- pert had an opinion, stated with confidence and without the shadow of a doubt, what right had a lawyer, with a totally different orienta- tion, to question that opinion? Often, the judge or jury, depending on who was to be the decision maker, accepted the expert testimony from the witness at face value, surrendering independent judgment without reservation and allowing the “expert” to determine the final outcome of the case by default. In contrast, in our current sys- tem, the jury or judge, depending on the case, is the final arbiter of disputes. Professional experts are only one of the factors that judges and juries consider when making judgments, reaching decisions, and pronouncing verdicts. In the legal middle ages, the 1960s, the therapist in a custody case would take the witness stand and be sworn in. Then gentle examina- tion such as the following would begin: What is your education? What is your work history or employment since you re- ceived your advanced degree? fpref.qxd 5/3/05 8:58 AM Page vii viii Preface List your publications and any special studies. How long have you treated Mr. and Mrs. Jones? Have you interviewed the children and for how many sessions? Describe the nature of the therapy offered to the Jones family. Dr. Smith, as a result of your visits with the Jones family and considering your learning, training, education, and ex- perience, have you an opinion concerning the best interest of the children? Would you recommend to the court that they reside primarily with Mr. Jones or Mrs. Jones? The expert witness might reply: “Yes, I do have an opinion. I would recommend that the children reside with as that would be in their best interest.” L AWYER :“And what is your rationale or reason for this opinion?” E XPERT W ITNESS :“Based on my many years’ experience in the field, my numerous cases and clients, and my educa- tion, research, and training, it is my professional opinion that would act in their best interest be- cause .” L AWYER :“Thank you!” Today, taking the witness stand can be an experience from hell. Everything about the expert is subject to questioning. For example, questions may arise concerning: •Your marital history. •Your involvement with your children including support payments. •Your grades in undergraduate and graduate school. •Your involvement with professional organizations. •Your credit and financial history if the lawyer can make it relevant. •Your techniques of therapy or counseling. fpref.qxd 5/3/05 8:58 AM Page viii [...]... book, The Portable Guide to Testifying in Court for Mental Health Professionals: An A–Z Guide to Being an Effective Witness, offers the practitioner a window into the forensic or courtroom scene A court appearance without preparation is naïve and unfair to the client as well as to the service provider This book will alert the mental health witness to the problems that are traditionally faced in the litigation... agencies The intake officer considers a number of factors in deciding whether informal proceedings are appropriate, including the seriousness of the alleged crimes, the minor’s delinquency and social history, and the level of remorse expressed by the minor If the intake officer decides that the case should be heard in juvenile court, a petition is filed with the court setting forth the statutes that the. .. “strikes” to eliminate jurors for any reason At the end of the process, a jury is seated to decide the issues submitted to it by the judge in the case 2 Opening statements: Attorneys or litigants are allowed to address the jury directly in an opening statement providing an overview of the evidence they expect to present to the jury and their theory of the case 3 Witness testimony and cross-examination: The. .. a juvenile to the court In this context, school counselors often are the first to recognize the genesis of criminal potential Often the school counselor recognizes inappropriate behavior before the parent is willing to admit there is a problem The court intake officer then evaluates the case, sometimes called a juvenile delinquency case, to determine whether further action is necessary, the child should... of the trial, written briefs from each party, and oral argument to the appellate court An appellate court may affirm or reverse the trial court s judgment, in whole or in part, and may send the case back to the trial court for rehearing The decisions of the first level of state appellate courts may be appealed to the state’s highest court and ultimately to the U.S Supreme Court The decisions of the. .. appellate courts may also be appealed to the U.S Supreme Court A litigant generally has a right to appeal a case to the first level of appellate courts State supreme courts and the U.S Supreme Court have discretion in determining many of the cases they decide to hear After all appeals have been exhausted, the case truly becomes final and the judgment is subject to enforcement The Process in a Criminal Case... Consent Form 241 245 Contract for Forensic Services and Information and Consent Form INDEX 253 249 bern_a03ftoc.qxd 5/3/05 7:52 AM Page xviii bern_c01.qxd 6/14/05 11:43 AM Page 1 PART I THE JUDICIAL SYSTEM When warring parents head to court to fight over child custody in New York, their lawyers often let them in on a little secret The most powerful person in the process is not the judge It is not the other... of certain evidence They are tools used by the government and the defense in an effort to set the boundaries for trial, should one take place Step Eight: Trial In a criminal trial, a jury examines the evidence to decide whether, beyond a reasonable doubt, the defendant committed the crime in question A trial is the government’s opportunity to argue its case, in the hope of obtaining a guilty verdict... redress for some wrong done to, or harm suffered by, the person bringing the suit The recovery of a monetary award is most often the goal Step One: Filing a Petition To initiate a civil lawsuit, a party must file a petition (or a complaint in some jurisdictions) in the appropriate court, setting out the identity of the parties, reason(s) that the court has jurisdiction over the parties and the dispute,... Last, the judge announces dates of future proceedings in the case Step Five: Plea Bargain In a plea bargain, the defendant agrees to plead guilty in exchange for a more lenient sentence The vast majority of criminal cases are resolved through a plea bargain usually well before the case reaches trial In a plea bargain, the defendant agrees to plead guilty, usually to a lesser charge than one for which the . Cataloging -in- Publication Data: Bernstein, Barton E. The portable guide to testifying in court for mental health professionals : an A-Z guide to being an. Page ii The Portable Guide to Testifying in Court for Mental Health Professionals An A–Z Guide to Being an Effective Witness Barton E. Bernstein, JD,