● Be sure all notes are “court ready,” meaning they are complete, dated, accurate, organized, and contain facts, not opinions. ● Be sure to follow ethical guidelines for confidentiality and know the limits of confidentiality and privilege. Many social workers are practicing in a field that is protected with not just confidentiality, but privilege. “Privilege” is a concept that says the social worker cannot be compelled or required to go to court unless the client consents to his or her appearance in court. In many states, a licensed clinician cannot be required to testify unless the client gives permission. ● In some fields of practice, social workers are more likely to be called into court; it might be part of the work that they are doing. As a child protection worker, for example, the social worker needs to be aware that if an amicable agreement with clients is not possible, he or she might have to defend the case and his or her position in court. Or, when working in an area such as family law, there may be a lot of tension and anger between spouses during separation and divorce. Again, the social worker might be more likely to end up in court. ● Child custody evaluations may be required in an area of practice such as forensic social work. If the social worker interacts with attorneys on litigation cases, he or she should receive specialized training in certain areas and fields of practice in order to be more persuasive and credible when giving testimony in court. ● In a forensic role, the duty is to the legal system. Many social workers do not realize that when they have an obligation to the legal system, their role may be more complex. In a custody evaluation, for example, the therapist cannot provide therapy or counseling to the parents who are going through separation or divorce. And as a social worker, he or she is trained to put the well-being of the client first. This situation may result in tension for the therapist and for the client. The social worker’s role as a witness is to help the court, meaning the judge or the jury. ● Social workers need to know the correct way to respond to a subpoena. If a social worker is unsure of how to proceed, he or she should contact a personal attorney or agency attorney for help. There are a number of different types of subpoenas. Some subpoenas are actually a court order compelling an appearance in court with legal consequences. In other cases, a subpoena is a request to appear and is initiated by an attorney for one party or the other; it may not be a valid subpoena and may be challenged. ● Social workers must remember that the client owns confidentiality and privilege and that when a social worker receives a subpoena he or she must let the client know. If the client gives consent to appear in court, then ordinarily the social worker should appear in court on the client’s behalf; this honors the client’s right to self- determination. ● If the social worker receives a subpoena from a lawyer that is not a court order, after the client gives permission, the lawyer might then contact the person requesting the subpoena. A conversation may be necessary to explain that a court appearance may not be the best option; the information that the social worker has may be second- hand and may not be as strong – or as useful to the court – as the attorney might think. ● If the client has given authority and consent for the social worker to release his or her records, the client may not fully understand that the entirety of his or her records may be released – not just the portions that the client feels are favorable to his or her case. When a client
knows he or she cannot control which information or testimony will be given, the client may reconsider. ● Another possibility is to request a motion to quash, a motion to cancel, or a motion to veto the subpoena. This motion would usually be requested by the client, if the client has the means and the attorney to pursue the motion. A social worker might need to help the client locate a resource for information or funding for legal assistance. The agency (and sometimes even the professional association) may have an interest in advocacy for a certain case, so they may file the motion. ● If called to testify, it is important for the social worker to prepare for one of two types of examination: In a direct examination, the social worker is called as a witness for the case. This will include general open- ended questions from the attorney’s perspective, geared toward the outcome that the attorney prefers (and most likely the one the social worker and client prefer). The lawyer will ask questions – guiding the testimony – because the information or opinions will support his or her case. The next type is the cross-examination. The other attorney will attempt to impugn the credibility, honesty, perception, memory, or accuracy of the witness testimony. He or she will attempt to create doubts in the minds of the judge or the jurors. In both cases, the objective is to be honest and open, as well as credible and persuasive. The cross-examination is more stressful, because the witness is being challenged. The witness may be called to explain any inconsistencies in written or spoken information. ● It is important to remember that no one is perfect and that there are times when a witness may be unsure. The social worker must be honest, and must slow down, take a deep breath, and use strategies to control stress and anxiety – and he or she must be aware of how body language may be perceived. ● When handling a tough question during cross- examination, the social worker should look the attorney in the eye and should not look at the client or the client’s attorney. This behavior may be interpreted as looking for an answer from them. In situations of extreme stress, it may be possible to ask for a short bathroom break to regain composure. ● Social workers can practice skills and prepare in mock sessions before taking the stand, using role play and with legal professionals – preferably with the attorney who is involved in the case. One way to prepare is to actually observe cases that are similar; although child protection hearings are usually closed to the public, it may be possible to ask the court administrator to observe for professional purposes to prepare for testimony. ● Social workers need to be aware that a fact witness is there to provide facts only. An expert witness can be called upon to give opinions; an expert witness is selected by the court based on qualifications. Professional social workers must give testimony only that falls within their area of expertise. ● To avoid situations that may lead to legal proceedings, it is important to pay close attention to informed consent, open communication, and strategies that build trust and open communication with clients from the first session through the last. Social workers need to manage and respond to clients (without judgment) if they have an issue or grievance. Ethical practice dictates that social workers have the obligation never to abandon a client. They need to find out what the client really wants and find a way to resolve the conflict to save the relationship. Sound decision making and professional collaboration should be used to overcome any barriers. The client may
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Book Code: SWTX1525
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