We are seeing many of our therapists receiving subpoenas and requests for court testimony, and we want to provide you with clarity and guidance should you ever face this.
We are working to put together courses on how to work with clients and families facing high conflict divorce, and how to navigate subpoenas and the court testimony process without landing yourself in a grievance. We will announce those dates soon, but in the meantime we’re offering you this short “how to” email to guide you.
It used to be that a therapist who was subpoenaed to testify could submit a letter or a treatment summary on behalf of the client and this would be an accepted alternative to testifying. This is no longer true. Now a letter or a treatment summary is deemed hearsay. Therapists need to be available to provide live testimony and be subject to cross-examination. That being said, we will offer you guidance and protection so that you can avoid testifying when you want to, or supply information to the courts when you feel it’s warranted without subjecting yourself to a grievance or being guilty of rendering parenting advice.
What to Do When Subpoenaed
So in brief, here are a few steps to take if you receive a subpoena to testify:
Step 1 – Make sure your paperwork clearly states your policy and higher fees around any sort of court involvement. This is a small but crucial little section in your Disclosure Statement that states your higher fees for court testimony, as well as that you will not render an opinion on which parent is more appropriate.. A good rule of thumb? Make your court preparation & testimony rate three times your normal hourly rate.
Step 2 – Call us and talk through whether you want to testify or not. We can help you think through the relevant issues and assess the particular circumstances surrounding your case.
Step 3 – Motion to Quash or Motion for Protective Order. If we determine you don’t want to testify, we will file a motion to quash on your behalf. If the court accepts this motion, you will not have to testify. If our motion to quash is denied or if we determine that you do want to testify, we would then request and obtain questions from the attorneys representing both parties in advance so that you know ahead of time what will be asked of you.
Step 4 – Schedule time with us for trial preparation. We will help you prepare your answers in such a way that avoids confidentiality violations, and also steers clear of angering one or both parents involved. The goal of this step is to safely limit your testimony so that no harm comes to you or to your client.
Step 5 – Appear in person or telephonically. Many times, although not a guarantee, we can petition the court to allow you to testify over the phone instead of appearing in person.
Step 6 – Breathe deep and speak what you know. Banish any thought of what you’ve seen on TV or the movies about court testimony, because it won’t feel like that. Keep your answers brief and to the point. And always keep in mind the best interest of the child or children caught in the middle of all this. That being said, NEVER render an opinion on who is the better parent or who should retain custody. That’s not your job, and if you slip on this one, the result will be an almost guaranteed grievance.
Remember, it is nearly impossible to please both sides, which is what makes court testimony so inherently dangerous. As the therapist of the children involved, you unfortunately have a front-row seat to how they are caught in the middle of a conflict that is truly not even about them. You want to speak up for them and make sure their voices are heard and their needs are taken into account by the courts. But once a decision is rendered by the court, one party will inevitably feel that your testimony was the nail in the coffin of why it didn’t go their way.
This is why it’s important to keep copies of all documents related to this process. Keep the original subpoena, request a copy of the court minutes for your records, and keep all emails from parents and attorneys. This way, if a grievance does come your way as a result of your testimony, we have everything we need to defend you. Showing that you were under a court order to appear and subject to cross-examination helps us protect your integrity as a therapist and your attempts at remaining neutral throughout the proceedings.
I know all this information can feel very overwhelming (in fact, some of you are probably checking the wanted ads for a job at Starbucks!). But allow me to say this: we need you. More importantly, the kiddos who are your clients need you. Navigating these cases can be very difficult and challenging, but if therapists back away from these sorts of cases because they are afraid of testimony, then countless children will not have competent and qualified professionals serving their needs. I know you’re anxious, but that’s why you have us. We will guide, support, and protect you so that you can continue the very good work our communities so desperately need.
Very Truly Yours
Bob & team
Robert A. Lees & Associates