Your witness
By Stacy Notaras Murphy
A summons calling a counselor to court brings with it enumerable questions and anxieties. What should you say to the judge? How should you present your credentials? Is it ethical to answer the opposing attorney's questions?
These concerns are enough to make some counselors avoid the court system altogether. But others have found that providing expert witness testimony complements their skill set and ignites their curiosity even as it helps to build their bank accounts.
The evolution from feeling fearful of the legal field to being fulfilled by its many opportunities is likely to include specialized training, anecdotal research and good old trial and error. Most counselors who have spent a significant amount of time in court as an expert witness will attest that the latter has a strong effect.
"My first court experience was a sex abuse case," says Richard Stride, a psychologist and licensed professional counselor in Wenatchee, Wash. "The attorney that asked me to help didn't prepare me at all. In Colorado at the time, in order to be qualified as an expert witness, the attorneys had to ask you questions, cross-examine you and then agree. I had no idea that that process was happening. There were six attorneys on the opposing side. It was a grueling process."
As a result, Stride, who has specialized in forensic mental health since 1995, always brings what he calls a "court notebook" that includes his résumé, transcripts and validity and reliability data concerning any psychological test he has administered in the case. "I have all that information at my fingertips because I came in for my first experience very unprepared," he says. "I couldn't remember every class I'd ever taken — and they do ask those questions to disrupt your testimony and disqualify you."
Which kind of witness?
Betsy Neely, an American Counseling Association member who teaches in the Forensic Psychology Department at Argosy University in Atlanta, has developed a workshop to help counselors understand their role in legal proceedings. "When someone from the helping professions enters the courtroom, they are entering a different culture," she notes. "They don't understand why the questions they would like to answer have not been asked, or why the questions they have been asked are not the ones they'd like to answer. It can be very frustrating."
In Georgia and many other jurisdictions, Neely explains, a significant difference exists between expert witnesses and "lay witnesses" or "witnesses of fact." Mental health experts must be qualified as "legal experts" and demonstrate a mastery of the research in all the areas in which they are testifying. As such, these expert witnesses can draw conclusions about a case, but often they have little personal connection to the complainants and defendants in a case. In contrast, mental health lay witnesses commonly are in direct contact with the members of the case, frequently serving as their counselors well before the legal system became involved. These witnesses are not allowed to draw conclusions and must rely only on the facts of their interactions with their clients.
Neely offers the example of a fictional child custody case. "If you're just being a fact witness, a caseworker or case manager, then your testimony is going to be limited to whether there's food in the fridge, if the house is clean, if the mother's eyes were red. You can only say, 'These were things that I observed.'"
Anne Marie "Nancy" Wheeler, an attorney who operates the ACA Insurance Trust's risk management helpline, says she frequently gets questions from counselors about serving as witnesses in court cases. "Perhaps someone's being harassed on the job and that client comes to you because she's having trouble dealing with it all. Later on, her attorney wants you to testify, and he will label you as an expert witness, asking you to render an opinion about the situation," explains Wheeler, coauthor of The Counselor and the Law, published by ACA. "If it's truly in your client's best interest for you to testify, it makes more sense to be a witness of fact, and not an 'expert,' which implies that you're neutral. How can you be neutral when you're really doing it for your client?"
"The role of an expert presumes there's a non-bias that the court can rely on to make a decision, but I think a lot of attorneys confuse the roles," she continues. "The expert witness's job is almost like a teacher in court — to inform the court, to help the court resolve some kind of issue. The person doesn't act as a client advocate but as someone who lends experience to the court. Many counselors fall into this role and end up feeling battered and abused by the process."
One effective way for counselors to avoid feeling abused during legal proceedings is to educate themselves on the process before they are called into court. "I think that most counselors don't like the idea of going to court, but there are some who are comfortable, especially if they go on to get further training," Wheeler advises. "The better trained you are, the more knowledge you have, and it definitely seems to lower anxiety. Counselors should typically act as expert witnesses only when they are not counseling the client involved in the legal action."
Getting prepared
Neely notes that talking to others who have spent time in the court system — counselors and other professionals alike — can be useful in helping counselors relieve anxiety and prepare themselves. She also recommends reading and rereading texts about clinicians involved in court proceedings.
Stride agrees 100 percent. "We know we live in a 'credentialed' society. You can't possibly foresee every question. Even though a lot of them are typical, many are aimed at disrupting you or discrediting you in the eyes of the jury. Of course, it's OK to say, 'I don't know,' but one of the things that has helped me is getting the credential as a Certified Forensic Mental Health Evaluator through the National Board of Forensic Evaluators [NBFE]."
ACA has partnered with NBFE since 2004 to advance the forensic evaluator credentialing process. The NBFE's certification requires a significant amount of footwork, including both written and oral exams. "It's grueling from the fact that you have to have so much experience, be licensed for a certain amount of time, have worked in the court system, have referrals, do a workshop, take exams and so on, but it's important because, traditionally, it's only been psychiatrists and psychologists whom the courts felt were qualified to be witnesses," Stride says. "We know that mental health counselors are just as qualified, so having a certification from a national board looks good."
Becoming an expert witness can also help counselors build another revenue base. "I require a retainer upfront, and then I charge per hour to do what I do," Stride explains. "The retainer can go from $1,500 to $5,000, depending on the case. It can be very lucrative if you do three or four cases per month." Marketing yourself is an important part of building a niche in this field, Stride says. He recommends that counselors maintain websites devoted to their courtroom experience and invest the time to get listed in the various expert directories.
Maryann Lucy, a counselor and ACA member in San Benito, Texas, is also certified by NBFE. She says her main motivation in serving as a witness in court cases remains using her expertise to help those in need. She explains that jurors face complicated, difficult decisions when it comes to child-related cases. "They need to have clear and concise information to assist them in understanding the nature of child responses and behaviors within the context of the developmental information that is available to us," Lucy says. "They need witnesses to educate them on such topics as symptoms of abuse and delayed outcry."
Lucy recommends finding a professional who can serve as a courtroom mentor. "Discuss your fears, plan rehearsal scenarios that will serve to educate you, and work on affirmations to overcome fear," she says. "You are the professional. You know the part you played in this [client's] experience. After testimony, process your experience and evaluate it with your mentor."
Do's and don'ts in court
Lucy describes her first court appearance as terrifying. "I had never done anything like this before and never experienced cross-examination," she recalls. "I felt very intimidated but tried to keep the image of the child victim before me. I left believing I had ruined her case, only to find out that her perpetrator had been judged guilty."
The experience made Lucy realize that she would need to "toughen up" to better serve her clients. Today, she emphasizes the importance of working with the lawyers involved ahead of time. "If I don't hear from them after a subpoena, I start calling," she says.
Stride says the most important thing for counselors to do is to go over questions in advance that the attorney will ask and to get input concerning potential cross-examination questions. He also emphasizes that counselors should work hard to present their information in a non-defensive manner. "When they challenge your credentials, certainly don't embellish," he says. "It's OK to agree with them and say, 'I don't have a lot of experience in that. However, according to my evaluation ...' Sometimes, you have to keep repeating yourself. Stick with your results, and certainly don't change your mind on the stand."
George Cyphers, an ACA member and rehabilitation counselor education instructor at Kent State University, agrees that advance preparation is key. Cyphers, who also runs a private consulting business, built a career around employee disability assessments, serving as an expert witness in 14 states.
"I have learned over the years that this is a serious business because it involves a person's life. You cannot afford to hold yourself out as an expert unless you are willing to invest time and effort to prepare thoroughly for the challenge of cross-examination," he says. "You must be thoroughly grounded in their field. In addition to being a subject-matter expert, you must be aware that the framing of opinions is a skill, as [is] the articulation and defense of an opinion in the stress of cross-examination."
Cyphers also notes the distinction between courtroom and deposition testimony. "Courtrooms are the theaters in which trials take place. ... Depositions are much harder work. Court testimony takes place in front of a judgmental audience — a jury, with a referee — a judge. Depositions are much more open to being turned into a free-for-all, and there is no one to admonish the bad behavior that attorneys can sometimes engage in."
Among Cyphers' additional pieces of advice for counselors serving as witnesses: dress modestly; speak clearly; only answer the question that was asked; and refrain from humor during testimony. "When serving as an expert witness, remember that none of the attorneys involved is your attorney," he says. "They all represent someone else, and they all have as an agenda to vigorously prosecute their particular point of view."
Richard Knowdell is a nationally certified counselor and longtime ACA member whose San Jose, Calif.-based career counseling firm offers vocational evaluations of those going through no-fault divorce proceedings. It's beneficial for counselors to know ahead of time that the courtroom experience is nothing like the old Perry Mason TV show, Knowdell says. He recommends that counselors spend time in a courtroom to observe the real-life behavior of judges, attorneys and witnesses.
Knowdell emphasizes the importance of counselors having a clear opinion backed up by solid facts. He also suggests that counselors be prepared for the legal system's slow pace. "You need to be patient, as most of the time your 9 a.m. case will not actually be called by the judge until 11 a.m. But keep in mind that your 'meter is running.' As an expert witness, your chargeable time starts the minute you leave your office and continues until you return to the office."
K. Joe Heard, an ACA member in private practice in Benton, Ark., has testified in more than 100 court hearings. He stresses the importance of obtaining documented consent from all parties so the counselor can communicate freely with the attorneys and judge. He adds that counselors should turn off their cell phones in the courtroom, dress professionally and remember to address the court politely using "sir," "ma'am," and "Your Honor."
"It is OK to take notes in with you and ask the court if you can refer to them. Just be aware that anything you carry into court is subject to review," Heard says. "Be objective on the side of truth rather than being biased. ... Realize that you are a highly trained professional with a license. Do not allow attorneys to intimidate you." After testifying, counselors can ask the court if they can be excused, Heard points out. That way, they won't end up spending the entire day in court.
What kind of person willingly signs up for this kind of experience? Stride says it helps to be someone who enjoys the debate. "There are some counselors who would rather do therapy, but there are some individuals who like the stimulation of going into court and debating with the attorneys. That type of person usually does very well in the court setting," he says. "[It's also] having the desire to do an in-and-out sort of thing. In forensics, you aren't the person's therapist or counselor. You are there to do an evaluation only, and that appeals to some counselors."
Stride notes that attorneys on both sides might attempt to get the counselor to offer an opinion rather than a statement based on facts alone. "Sometimes, the attorney will say, 'Well, if you knew that this person had a DUI 10 years ago, would this change your opinion?' You must say, 'No, according to the information I had at the time, I would not change my opinion.' Or they say there's an expert who said something else, and would you defer to him because he's an expert. You have to say, 'No, according to the information I had at the time of the evaluation, I would not change my opinion.'"
"No speculation," Stride emphasizes. "Stick to the facts."
Stacy Notaras Murphy is a licensed professional counselor practicing in Washington, D.C. To contact her, visit therapygeorgetown.com.
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