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Allan Barsky, JD, MSW, PhD is Professor of Social Work at Florida Atlantic University in Boca Raton and Chair of the NASW National Ethics Committee. He has a background in social work, law, and mediation. His book authorships include "Conflict Resolution for the Helping Professions" (Brooks/Cole), "Ethics and Values in Social Work" (Oxford University Press), and "Clinicians in Court" (Guilford Press). Dr. Barsky is a Florida State Accredited Family Mediator and has published articles in the Journal of Social Work Values and Ethics, Family Court Review, and Conflict Resolution Quarterly.
TRANSCRIPT
Introduction
Jonathan Singer: Hey there podcast listeners. I’m recording this on Monday, December 17th, 2012. Three days ago, on Friday, December 14, 2012 I learned about the massacre at Sandy Hook Elementary school, probably like many of, on Facebook. I received a text alert that my friend Erin had updated her Facebook status: “Oh my goddess, my heart is breaking. Connecticut.” There was no link, so I hopped on Google news. A few minutes later my heart was breaking too. By Friday night it seemed that the entire nation was heartbroken by the news of 20 children and 7 adults who were gunned down in Newtown, CT. Today, three days after the massacre, the first children were buried. And while we don’t know much about the gunman, Adam Lanza, we know this story all too well. He was, like the gunmen in nearly all of the other recent mass shootings in the United States, a middle class white male with a DSM diagnosis and access to guns. The story of mass shootings in the United States is sadly familiar. Although the specifics of this story are only days old, if it plays out like Columbine, Virginia Tech, Aurora, and the others, the coming days, weeks and months will look something like this: a nation of shocked and grief stricken people come together in a shared sadness and sense of disbelief. Journalists do their best to piece together answers that were buried along with the gunman. We will talk about mental illness. We will debate the relative merits of an armed citizenry. Schools will review crisis plans, safety protocols, and risk management. We will eventually go back to work. And then the lawsuits will start. That last point brings me to the topic of today’s Social Work Podcast: Social Workers in Court: An Interview with Allan Barsky
If journalists were the only chroniclers of mental health-related lawsuits we would assume that social workers, counselors, psychologists and other mental health professionals only get called into court after a mass shooting, or when there is a child welfare debacle. The reality is that clinicians get called into court all of the time. If you work in child welfare, the juvenile or criminal justice system, or hospital settings, going to court is probably part of your job. And you know that in court, that’s where you can provide support for your client, defend your own actions, and in some cases, make the system better. If you work in a job where going to court is the exception rather than the rule, it is still important to have a basic understanding of what happens in court and what are your responsibilities as a professional.
So, to figure out more about this issue, in November 2012 I spoke with Allan Barsky, professor of social work at Florida Atlantic University and Chair of the NASW National Ethics Committee. Allan has a background in social work, law, and mediation. He is also the author of three books, including “Clinicians in Court” published by Guilford Press.
In today’s interview, Allan and I talked about what it means for a social worker to be “court ready,” especially for social workers whose jobs do not typically involve going to court. We talked about the difference between forensic social workers and social workers who have to appear in court. Allan talked about the difference between client confidentiality and client privilege, between being a witness and an expert witness, and between preparing for legal proceedings and disciplinary proceedings. He gave some pointers on how social workers should respond to a subpoena. I asked him about what for many clinicians is the most stressful part of going to court - examination and cross-examination. We talked about how social workers can prepare for it, including some strategies for dealing with “tough questions” during a cross-examination. We ended our conversation with Allan providing some resources for social workers who want to know more. If you want to find additional references and resources, as well as a transcript of my conversation with Allan, please go to the Social Work Podcast website at socialworkpodcast.com. If you want to join the conversation about clinicians in court, go to our Facebook page at Facebook.com/swpodcast. If you’re on Twitter, you can follow the podcast at twitter.com/socworkpodcast. And now, without further ado, on to Episode 76 of the Social Work Podcast: Social Workers in Court: Interview with Allan Barsky.
Interview
Jonathan Singer: Allan thanks so much for talking with us today about clinicians in the court system. What do clinicians typically think about when they think about the courts or the legal system and what are some things that we don’t think about that you think are important for us to know about or have in our mind?
Allan Barsky: I think a lot of social workers and other clinicians, if they're not in a context of working with the law, working with legal systems like criminal justice or child protection or even mental health, they don’t think too much at all about the legal system. “I'm not going to end up in court.” “I don’t have to really prepare for court. I don’t need to conduct my practice in a way that’s going to be ready for court.” But when something arises, they're really not prepared for it and so if they get sued for malpractice, that’s the first time they start thinking about appearing in court.
Jonathan Singer: Which is a little too late.
Allan Barsky: Right. It's always better to have the preparation ahead of time - not just preparation for court, but the way that you prepare your practice and the way that you prepare your notes. So, if all along in your career you’ve got court-ready notes, it's going to be a lot better than if you’ve got notes that are really disorganized, don’t really look professional, don’t really separate out what's fact and opinion, and that sort of thing. So, it's not just, “I'm going to be in court tomorrow.” Court takes a long time to pan out, but if you know ahead of time some of the issues that might come up if you get involved in a court process, you can certainly conduct yourself in a much more professional manner and manage a lot of the risks.
Jonathan Singer: So, what are some of the important things for social workers and clinicians to understand about courts? So, you talked about court ready documentation, but what are some of the basic things that they should know?
Allan Barsky: One of the issues is to know about confidentiality and what are the limits of confidentiality. There are many social workers who are practicing in a field of practice that’s protected with not just confidentiality but privilege. Privilege is a concept that you can't be compelled or required to go to court unless the person who is the client consents to you appearing in court. So, in many states, if you're a clinician and you're a licensed clinician, the court can't require you to testify unless your client is also giving you permission.
In some fields of practice you're much more likely to be called into court. It might be part of the work that you're doing. So, if you're a child protection worker, you need to know that if you can't work out things on an amicable basis with your clients, you might have to defend your case and your position by going into court. Or, if you're working in an area like family law where there may be a lot of tension and anger between the spouses during separation and divorce. Again, you might be more likely to end up in court.
Or, you might even pursue an area of practice like forensic social work if you're interested in doing child custody evaluations. If you want to work with attorneys on litigation cases then you can specialize in certain areas and fields of practice in order to make yourself a much more persuasive and credible person who gives testimony in court.
Jonathan Singer: And by forensic social work, you mean…
Allan Barsky: When we usually think of clinicians or social work practitioners, we think of them as helping agents and they're to counsel, and they're to provide the therapy and they're to provide support. When you're in a forensic role, your duty is to the legal system. And so a lot of people don’t really realize that when you’ve got obligations to the legal system, it may mean that you actually can't help your client. If I am doing a custody evaluation, I can't provide therapy or counseling to the parents who are going through separation or divorce. And as a social worker, we're so trained to be helping of people, it's a real tension. And then when we get into court, we sometimes think that, “Oh, you know I really want to help my client.” But your role as a witness is to help the court, to help the judge or the jury.
Jonathan Singer: So, the question that always came up in our agency was if somebody shows up with a subpoena, what do we do?
Allan Barsky: One of the ways to respond to a subpoena is to contact your attorney. If you're not sure what to do then either your personal attorney or your agency attorney should be able to help you. There are a number of different types of subpoenas. Some subpoenas are actually a court order meaning that if you don’t show up in court, then there could be criminal consequences that come out of it, including imprisonment - not likely but that’s a possibility. A lot of times though a subpoena is a request to appear that’s initiated by an attorney for one party or the other, and you don’t really even know if that’s a valid subpoena, if it's challengeable, etc.
We have to remember that confidentiality and privilege are owned by the client, not by you. So one of the things that we do when we receive a subpoena is we let our clients know that we've received the subpoena. If our client gives us consent to appear in court, then ordinarily we should appear in court on their behalf. That’s honoring the client’s right to self determination. Some social workers again think they own the privilege and confidentiality and think, “I don’t want to appear in court, so I shouldn’t have to.” Sometimes if you're called to appear in court it takes away from your time, your time with the client, etc. so you think, “How come I should be compelled to go to court.”
Again, if we know about confidentiality and privilege and subpoenas, we can organize our practice in a different way. You can have an agreement with your client that they will not call you to court. And that might be enforceable, but at least it's some protection against the clients calling you to participate in court. Or you might say, “If I am called to court, the client will pay a fee,” and you can at least get reimbursed for your time in court.
Jonathan Singer: So in terms of getting subpoenaed, is there any way to like keep yourself from having to respond to a subpoena?
Allan Barsky: One of the things that you can sometimes do when you receive a subpoena that’s from a lawyer, that’s not a court order… if you’ve got permission from the clients, your agency or your agency’s lawyer might actually contact the person giving the subpoena. Because, if you have that conversation with them, there may be a possibility that they’ll understand that it's not a good thing to call you into court. A lot of times the information that we have is second-hand information and so it's not really as strong or as useful to the court as the attorney might think.
Another possibility is there are a lot of pretrial processes. Just because you're called into court, it doesn’t actually mean that there's going to be a court hearing. You might want to wait to see what happens if there are discoveries or depositions, mediation or other pretrial processes. The case might just settle and you don’t have to appear in the end. But often what people want in the early stages is the showing of information. So, if your client has given authority to you to release their records, they may not understand that if you release some of the records, you have to release all of the records. You can't just release the good stuff about the client.
If the client and their attorney really realize that sharing this information with the court wasn’t such a good thing, maybe they wouldn’t call you at all. Another possibility is to do a motion to quash, a motion to cancel or veto the subpoena. Usually it would be the client, if the client had the means and the attorney to pursue the motion. As a social worker, you might have to give them some legal information or perhaps even help them with the funding to be able to do some sort of motion to quash if they can't afford that on their own. Perhaps their attorney will pursue it for you, so that’s ideal.
And then your agency and sometimes even the profession may have an interest in protecting a certain type of relationship, so it may be the agency or you as the social worker that decide, “We’re going to try to pursue a motion to quash.” But you have to have good legal grounds for it and it's not something that you can do without the assistance of an attorney.
Jonathan Singer: So, let's say you get called in, and you're going to go to court and you're going to be on the witness stand, there's this thing called cross examination. What is that and how would you prepare for that?
Allan Barsky: There are two types of examinations. The direct examination is whoever calls you as the witness, they can ask general questions, open-ended questions and usually their perspective – the outcome that they prefer – is the one that you or your client would also prefer. So, it's really a friendly lawyer asking you questions, taking you through your testimony because they think the information or perhaps the opinions that you have are going to support their case.
After you presented that information – evidence in the examination from the friendly lawyer – the other lawyer or sometimes more than one lawyer have an opportunity to also ask you questions, and that’s the cross examination. They can ask you questions to try to impugn your credibility, challenge your honesty, your perception, your memory, try to make it look like the evidence that you're providing is not fully accurate. They don’t have to prove that you're lying. Sometimes, they just have to raise enough doubt so that the judge or jury can't say “Okay, we can depend on this information.”
When you appear as a witness, you want to not just appear as open and honest, but also credible and persuasive. This is one of the areas of the court hearing that most people have the highest anxiety about, because you're being challenged. You're being questioned. You're being asked questions that might look at private areas of your life to try to show that you're not as upright and honest a citizen as you’d like to think of yourself. They might look for inconsistencies between what you present in your notes and what you present orally.
They might look at inconsistencies between what you’ve got in your reports or what you’ve presented on any of the pretrial processes. So, there's a lot of areas where you can get tripped up and it looks like you're on the stand, that you're being challenged, that you're on trial. And in some cases like malpractice, yes, you really are on trial. But in a lot of cases, your job is really just to present the best evidence that you can and think “You know what, my evidence isn't perfect.” It helps you to see you know that, if it doesn’t come across as perfect, “I'm not going to take that so hard. I'm doing the best I can.”
Jonathan Singer: Because it does, you know, from TV and movies, that cross- examination - it seems like there's always the moment where there's this one question that somebody says but and they want to, you know the witness wants to say more and everybody is like stop, you can't say anything and it seems like a really unfair question. It paints the witness in a bad light, you know, kind of everything and it seems like it kind of misses the point. Like if you asked a 5-year-old, “was that a good question?” the 5-year-old would say “No. Bad question.” Right? But it seems to tip the scales.
Allan Barsky: And you prefaced that by saying this is what we see on TV, so it absolutely is possible that you could be asked questions that are completely inappropriate. And it could overruled as being too prejudicial or irrelevant or whatever, but the person still makes a point. So, they ask you a question about, “Isn't it true that you were born in Kenya?” What relevance does that have to do with the case? But you know it's out there and so if people are discriminatory with people from Kenya, it might have an impact on them.
Most of the stuff that happens in court is a lot more boring than what you see on TV, but you still need to be prepared for some of the things that might come up and there are a lot of strategies that you can use. So, for example, let's say that you're asked a really pointed question - or a series of questions - and you're not quite sure what to say. Do you know what you can say? “Can I think about it for a minute” or “I don’t know the answer.” A lot of people think that they have to know the answers and it's okay. If you really don’t know, just say, “I don’t know…” “I don’t have an opinion on this…” “I don’t have a current recollection of this…”
Again, the most important thing when you're on the stand is to be honest. And people will see you as honest when you're not perfect. If you look too perfect, sometimes that means that you're making up stuff - you’ve rehearsed it. And so sometimes just being yourself, being honest, slowing things down, taking a deep breath, using the different things that you use in your ordinary life to decrease stress and anxiety, use those on the stand. If you need to do something like twiddle your fingers, you can twiddle your fingers. But also look at, if you're twiddling your fingers, how might the jury or others perceive that and there's a lot of like simple strategies to do if you're asked a tough question by the cross-examining attorney.
Look them back in the eye. Don’t look over to your client or to the attorney, because it looks like you're reaching for them to give an answer for you. Another strategy might be something that just delays things a little bit if you're really under a lot of stress and you need a break. You can say, “I need a bathroom break” or whatever it is that you need. So, try to take some control for yourself. I think the more people learn about the court process through observing, through reading, through talking to others, through role playing, the more empowered that they will be. And as social workers, you know, as professionals we want to look good on the stand. We want to do good for our clients, but we also have to know at the end of the day we're supposed to be there to provide as truthful answers as possible. And that’s the basic end of it.
Jonathan Singer: So obviously there are some domains of social work which have more interaction with the courts than others as you were alluding to earlier. If you work in an area of social work that typically doesn’t have involvement with the courts and so this isn't part of your agency training, it's not something you think about very often, but you find yourself being called to court as a witness, what are some things that you should do? How do you prepare? How do you think about it? What is your role? All those sorts of things…
Allan Barsky: I think one of the things to look at is, “What is the nature of the case,” and what is the nature of your role in that particular case. So, if you don’t have the knowledge yourself or the experience in that particular type of case, then find somebody that does. Ideally, it would be someone in your agency. There's more and more people out there who’ve got dual backgrounds in social work and law, or mental health and the law, so those people can be really helpful. It may be that the person calling you to court is a friendly lawyer, somebody who’s on the same side of the case that you or your client would want to pursue.
And so that person might be able to prepare you and educate you and even do some role plays to help you prepare for it. But you also have to remember that even if there is an attorney to prepare you, who’s paying for that attorney? Because a lot of times, it's hundreds of dollars per hour and they may have limited time. And some attorneys are better than others at preparing their witnesses. So ideally, yes, you would get prepared by the attorney who’s calling you as a witness, but that’s not always the case. You might need to take on some of the responsibility yourself.
One way to prepare is to actually go observe cases that are similar. If you're called to a child protection hearing, usually those are closed to the public, but you could go to the court administrator and ask if you’d be able for professional purposes to observe some hearings and to be able to see people in action and how they respond to different questions and things like that. You could read various textbooks. It doesn’t have to be my textbook, but there are a lot of tips and strategies on how to respond to different types of things.
A lot of times, people want to tell their story. They think that all the information that they have is important and should be shared. And they get really frustrated because you can only answer the questions that the attorneys ask and there may be objections to the types of information that you're providing. If you're a fact witness, you're only there to provide the facts. To provide opinions, you have to be qualified as an expert witness. That means the court says that you're qualified to give opinions and so a lot of people if they were called to court they would think “Well, I'm a professional so of course I'm an expert.” But you're not always an expert in the area that you're giving the opinion unless the court says that you are.
Jonathan Singer: I think that brings up a really interesting distinction. There's a witness, right and then there's the expert witness and you alluded to this idea of sort of fact versus opinion. Could you elaborate on that and then talk a little bit about what happens if somebody gets called to be an expert witness, what that means and what that might entail.
Allan Barsky: Sure. It helps to understand the legal system and how our trials work. In a court system, the people responsible for making the decisions are the jury (if there is a jury) or the judge (if there's no jury). And so they're supposed to make the decisions on fact. It's the witnesses who provide the information or the evidence to help them to determine those facts, so ordinarily the court does not like people giving them opinions. So, the social worker he should not walk into court and saying she’s guilty or she should have custody or she should – you're not supposed to make the decision for the judge or the decision for the jury.
Now, courts have recognized over the years that there are occasions when it is helpful for the court to be educated by someone who has more expertise than the judge does themselves. In Family Law cases for example, a judge doesn’t want to have to make a decision about where children should live or how they spent time with each of their parents without having in depth knowledge about child development issues and family issues and somebody who’s actually observed - and in a scientific way - evaluated what's going on in the family.
So, they’ll want to have experts come in. Judges will want to hear people who have expertise in a particular area give their opinions. Now ideally the expert is somebody who is neutral and impartial. In some types of cases, the courts will actually not hear people who are hired by one party or another. In other types of cases, there is a competition between the plaintiffs and the defendant’s attorneys - and each of the experts that they will provide - so you’ve got dueling experts and you need to know what exactly is your role as an expert.
Are you there to explain complex psychological and social issues? Are you there to conduct an assessment or an evaluation, applying your knowledge and expertise? Are you there to give opinions or are you there just to explain?
Jonathan Singer: It's really interesting. So, we've touched on a couple of things that social workers should know about, everything from documentation to examination – cross examination. You’ve mentioned some terms like discovery, deposition and things like that that some folks might not know what they mean but are important for understanding the legal system. Now, you have a second edition of your text “Clinicians in Court: A Guide to Subpoenas, Depositions, Testifying and Everything Else You Need to Know,” so what are – what is everything else that somebody needs to know that they would find in your text?
Allan Barsky: One of the areas that we start off with is being a good reflective practitioner, and what does it mean to be called into court and working with attorneys and working with judges? A lot of us as social workers might have some negative opinions of the justice system because we've seen it being used against our clients in ways that we don’t think are fair to our clients. It's important just to have an understanding of how are social workers similar to or different from lawyers, how is participating in a legal system different from the ordinary types of help that we provide as social workers.
Also, how can we conduct our practice in ways that’s more likely to keep us out of court? If we keep really good records, and if we write our reports and write our assessments in particular ways, it's not just helpful to us, it's helpful to our clients. A lot of times it's strong facts, strong evidence that wins cases - not strong witnesses. Lawyers will sometimes say “If it's not in paper, it didn’t happen. “If we take good notes and we write things down and it's a he said, she said situation, your written notes are the thing that might trump everything else. The attorneys will see that ahead of time and they’ll hopefully negotiate a solution rather than have to fight it out in trial.
What a great gift that you can give to your client - just to save them a court case. You know, the time and the expense and the aggravation and everything else. It's much better if you can do things in a way that keeps you and your clients out of court. So, we have some information about things on managing your practice and that includes avoiding malpractice situations and risk management. So, let's say that you're engaged in an area of practice that’s somewhat risky and you’ve got a risky intervention with your clients. What can you do with your informed consent process, with ensuring the clients really understand, with your insurance companies, with your agency policies, etc. to make sure if something negative does happen, you’ve got a way to cover for that?
Even managing our responses to clients when they have grievances. A lot of times when the client complains, we think, “Oh, we've got to call in the lawyers.” And it may be absolutely true that you need to have some legal advice. But be careful about a lawyer who says okay, “We have to stop serving this client,” just cut them off. Well, we've got an obligation not to abandon our clients, number one. Also, we might be able to save the relationship. It may be through apology. It may be through compensation. It may be through just good counseling that, you know, find out what this client really wants.
They may not want to go to court and sometimes a client who feels heard and feels like their concerns are validated, they're going to get more from that and they would get from court anyhow. We're lucky a little bit as social workers because most clients and attorneys don’t think we have a lot of money, so we're not worth suing. But there still are cases against us and grievances against us. Some of the things in the book focus primarily on clinicians in court literally, but also there's a lot of strategies that would be useful regardless of the type of hearing. So people will more likely as social workers come before a licensing board than before a court in terms of client grievances. You can use a lot of the strategies if you're dealing with a licensing board as well.
Jonathan Singer: That sounds like a really valuable text to have whether you're in agency setting or in private practice, whether you're preparing for a court case or you just want to try and avoid going to court if possible. To be fair and balanced, are there other resources for social workers who are interested in learning about courts or just for the legal side of it that you could recommend.
Allan Barsky: You know there are all sorts of forensic associations and national associations of forensic social work and psychology and also psychiatry. Also, it depends really on the field of practice that you're in - The Association of Family and Conciliation Courts, if you're involved in family law or juvenile justice. There are restorative justice organizations for criminal law and alternatives to criminal court. If you're involved in child welfare, the child welfare information gateway is just a phenomenal resource. Look at the various sections of the NASW because they’ve got forensic areas and areas that cross over into forensic areas. Oxford Bibliographies online has a whole list of resources that are related to social work and the law, including the court system and even beyond.
Jonathan Singer: That’s great. Well, Allan thanks so much for talking with us about Clinicians in Court, and I hope that the folks who are listening will feel a little bit either more prepared or a little more appropriately anxious, and will therefore be better providers. So, thanks a lot. I appreciate it.
Allan Barsky: Thank you very much. Have a great day.
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References and Resources (provided by Allan Barsky)
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- Bahadur, R. (2009). Electronic discovery, informational privacy, facebook, and utopian civl justice. Mississippi Law Journal, 79, 317-369.
- Barsky, A. E. (2007). Conflict resolution for the helping professions (2nd ed.). Belmont, CA: Brooks/Cole.
- Barsky, A. E. (2009). Social work research and the law: How LGBT research can be structured and used to affect judicial decisions. In W. Meezan & J. I. Martin. (Eds.). Research methods with gay, lesbian, bisexual, and transgender populations (pp. 372-401). New York: Routledge.
- Barsky, A. E. (2010). Ethics and values in social work: An integrated approach for a comprehensive curriculum. New York: Oxford University Press.
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- Jaffee v. Redmond. (1996). United States Supreme Court. Retrieved from http://jaffee-redmond.org/cases/jr-opin.htm.
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- Vogelsang, J. (2001). The witness stand: A guide for clinical social workers in the courtroom. Binghamton, NY: Haworth.
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- American Academy of Psychiatry and the Law: http://www.aapl.org
- American Bar Association: http://www.abanet.org
- American Board of Forensic Psychology: http://abfp.com
- American Psychology Law Society: http://ww.ap-ls.org
- American Society of Trial Consultants: http://www.astcweb.org/public/index.cfm.
- Association of Family and Conciliation Courts: http://www.afccnet.org
- Child Welfare League of America: http://www.cwla.org
- National Organization for Forensic Social Work: http://www.nofsw.org
APA (6th ed) citation for this podcast:
Singer, J. B. (Host). (2012, December 18). Social workers in court: Interview with Allan Barsky, JD, MSW, PhD [Episode 76]. Social Work Podcast. Podcast retrieved Month Day, Year, from http://www.socialworkpodcast.com/2012/12/social-workers-in-court-interview-with.html
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