Counseling Today, Online Exclusives

Counselors in the courtroom

By Margaret Taylor May 10, 2017

Counselor educators are responsible for ensuring that students are sufficiently prepared for entry into the counseling profession. It is challenging for counselor educators to include all areas of preparation because numerous content and curriculum standards must be met. One topic that often gets neglected is preparing counselors for testifying in court. In a paper presented at the 25th International Play Therapy Conference in 2008, Marilyn Snow and Ruth Ouzts Moore found that counselors were increasingly being called on to testify in court, especially in child custody cases. But most counselors are not well prepared to serve as competent witnesses or represent the counseling profession adequately.

Inadequate knowledge about the judicial system and process regarding court testimony may place counselors at risk for ethical violations. Therefore, I believe it is crucial that counselor educators prioritize educating students about testifying in court. The first time that I testified in court as a beginning counselor, I found that I had been poorly prepared by educators and attorneys. The experience nearly traumatized me. I was not ready for the questions that were asked of me or the grueling process of cross-examination. As a result, the client’s case suffered and the counseling profession was misrepresented.

After this initial experience of testifying in court, I vowed never to be caught unprepared again. I also determined to use my negative experience to better equip counselors for testifying in court.

 

Legal and ethical responsibility

Counselor educators are expected to be knowledgeable about ethical and legal issues in the counseling profession and recent changes in the field of counseling. Standard F.7.a. of the American Counseling Association’s 2014 Code of Ethics states, “Counselor educators who are responsible for developing, implementing and supervising educational programs are skilled as teachers and practitioners. They are knowledgeable regarding the ethical, legal and regulatory aspects of the profession; are skilled in applying that knowledge; and make students and supervisees aware of their responsibilities.” This section of the ethics code applies to the fact that counselors are frequently subpoenaed to testify on behalf of their clients. Accordingly, counselor educators are ethically obligated to educate students about their ethical and legal responsibilities when testifying in court.

The Council for Accreditation of Counseling and Related Educational Programs (CACREP) Standards (2016) also address the ethical and legal responsibilities of counselor educators in preparing their students for practice. Two CACREP Standards apply to the issue of counselors testifying in court. Standard 2.F.1.b. states that programs must include, “the multiple professional roles and functions of counselors across specialty areas,” whereas Standard 2.F.1.i. specifies that training must be provided in “ethical standards of professional counseling organizations and credentialing bodies, and applications of ethical and legal considerations in professional counseling.”

Together, the ACA Code of Ethics and the CACREP Standards would appear to require that counselor education curricula incorporate training in the roles and responsibilities that come with testifying in court and otherwise acting in the best interests of clients.

 

Competence as a counselor educator

Counselor educators are not only responsible for providing students with material on courtroom testimony and other aspects of law pertaining to their clients; counselor educators are also to be knowledgeable about the topic themselves. Counselors and counselor educators should seek guidance from counseling professionals who have served as witnesses in court.

As reported in the Counseling Today article “Your witness” in 2011, George Cyphers, a counselor educator at Kent State University and owner of a consulting business, made this statement about testifying on behalf of clients: “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.”

Experience from practicing counselors reiterates the importance of preparing students for courtroom testimony. Time and effort should be placed into designing a curriculum that includes education about testifying in court on behalf of counseling clients. Students who are well-educated and prepared in this area are able to represent themselves, their clients and the profession effectively.

If we agree that counselor education programs need to prepare students for court testimony, the question becomes what should counselor educators include in the curriculum, and how are these competencies best attained? Various expert witnesses, attorneys and counselors have provided suggestions on what is important to know prior to entering the courtroom. Writing for the Journal of Counseling & Development in 1990, Jan La Forge and Phyllis Henderson suggested four categories: the role of the counselor in the courtroom, pre-court preparation, courtroom etiquette and strategies for answering questions.

 

Role of the counselor in the courtroom

The role of the counselor while in the courtroom is that of a witness. Forge and Henderson asserted that the counselor serves as an educator to the jury and the judge, providing factual and neutral information. It is important that counselor educators distinguish between an “expert witness” and a “witness of fact.”

To testify as expert witnesses, counselors must first be qualified as such by the judge. Demonstration of knowledge and experience may include publications, presentations and specific training in the area of expertise. The prosecuting attorney will ask counselors questions about their qualifications. Counselors answer these questions by demonstrating their knowledge and expertise. After presenting their qualifications, it is possible that the opposing attorney will call those credentials into question. Counselors should be prepared for this possibility. If they are not challenged, it is likely that the judge will qualify them as expert witnesses, meaning these counselors can offer an opinion on the case.

Valuable witnesses are typically well-educated, intellectual individuals who are able to educate a jury about their expertise as it relates to the case. Expert witnesses should be skilled at teaching a jury, using short statements rather than long uninterrupted assertions.

Conversely, “fact witnesses” provide testimony about what has been observed, heard or known as true events during the course of counseling. Michael Puhl of Puhl Law Group explained (2014) that fact witnesses do not have a particular expertise; therefore, they are not permitted to offer opinions about the facts of the case. Counselors working with children are often called to testify as fact witnesses because of disclosure statements made by children during session. As fact witnesses, counselors may repeat statements made by the child but not offer an opinion about the truthfulness of the statement.

Various resources exist for counselor educators and counseling professionals when preparing to be called as expert witnesses. The following is a list of books and articles on testifying as an expert witness:

  • “The Ten Commandments of Testifying at Trial” by David Benjamin
  • “Expert Witnesses, Courts and the Law” by Elizabeth Butler-Sloss and Ananda Hall
  • “Working as an Expert — Tips for Expert Witnesses” by Aaron Larson
  • “May It Please the Court: Testifying Tips for Expert Witnesses” by Laurence Miller
  • “Courtroom Survival Guide” by Patrick J. Walsh
  • Feder’s Succeeding as an Expert Witness, fourth edition, by Harold A. Feder and Max M. Houk
  • The Portable Guide to Testifying in Court for Mental Health Professionals: An A-Z Guide to Being an Effective Witness by Barton E. Bernstein and Thomas L. Hartsell Jr.
  • Clinicians in Court: A Guide to Subpoenas, Depositions, Testifying and Everything Else You Need To Know by Allan E. Barsky and Jonathan W. Gould

This list is not exhaustive, but it serves as a good starting point for counselor educators to incorporate material into a course for counseling students. Material on courtroom testimony can be infused into different courses of a master’s counseling program for clinical mental health or school counseling. Orientation classes on the counseling profession or for clinical mental health counseling or school counseling would also be appropriate courses to include material on expert testimony. In a counselor education and supervision doctoral program, a course on contemporary issues in counseling would be a fitting place for information on counselors serving as expert witnesses.

Counselor educators can also provide opportunities during practicum classes for students to meet with counselors who serve as expert witnesses. These expert counselors could answer students’ questions and concerns. Counselor educators can also arrange for an attorney or expert witness to attend class to demonstrate various court proceedings that counselors may encounter, including depositions, cross-examination, criminal trial and custody hearings. Role-plays of legal proceedings can also serve as an excellent method for educating counselors about what to expect in the courtroom.

Likewise, educators may arrange for students to observe a court hearing or attend a mock hearing or trial. A study conducted by Carol R. Colby and Lynn Landis Long in 1994 found mock trials to be a useful teaching method for graduate counseling students who are learning about ethics and legal proceedings. Legal and counseling ideas are integrated in a mock trial, providing students experiential learning and practical application. A mock trial helps students understand the functions of all people involved in the law, including judges, attorneys, mental heal professionals, jury members and court reporters. Educators can best prepare students for possible legal proceedings by pairing knowledge from lectures with experiential learning, such as roles-plays and mock trials.

 

Pre-court preparation: Documentation

Proper documentation is one of the many important tasks in preparing for court. Outside of the court setting, counselors are ethically obligated to maintain appropriate documentation of all clients. Therefore, preparing documentation for court should not pose a challenge.

Attorneys vary in what they request in a subpoena for records. Counselors should be prepared to provide all of the client’s records. However, counselors may be asked to present only records pertaining to a certain allegation or custody matter.

Many court cases do not occur until long after a counselor has terminated with the client. Being meticulous and cautious about documentation is crucial for counselors. It is generally recommended that counselors maintain detailed documentation of any action in a client case, including meetings with parents and client disclosures. Counselors should be aware that if an activity is not documented, then there is no hard evidence that it happened. This aspect is important to keep in mind when a client misses appointments.

Moore and Laura R. Simpson suggested in a 2012 VISTAS article that when writing case notes, counselors should be careful to use definitive descriptive language. For example, rather than stating, “It appears the child was neglected by family,” a counselor should state, “The child disclosed that the family withheld food for three consecutive days.” Careful language prevents the counselor from being trapped on the stand by a statement made in documentation. An attorney cannot challenge the counselor on a statement made by a client; however, an attorney can question a counselor about an opinion given in documentation.

Once records are subpoenaed by the courts, counselors should document the subpoena in their records and then should immediately contact clients to inform them of the breach of their confidentially. Clients have the right to know when their confidentiality is broken because of legal proceedings. This phone call or meeting to inform clients of the subpoena should be documented too. Thorough documentation of the limitations to confidentiality will help prove the counselor acted ethically should a client seek legal counsel.

 

Pre-court preparation: Conference with attorney

Counselor educators should inform students of the necessity of meeting with the attorney who issued the subpoena so that both the attorney and the counselor are well-prepared for possible testimony. Forge and Henderson explain that during this conference, counselors can be informed about particular documents that will be needed and what questions will be asked of them during testimony. Counselors can also inform the attorney of any concerning issues about the case to prevent the attorney from being surprised during the hearing.

Cross-examination will occur from the opposing attorney during the course of a court hearing. Meeting with an attorney in advance can provide opportunities to cover questions and strategies that may be used during cross-examination. Knowing ahead of time that attorneys are being compensated to discredit the witness prior to a court hearing can keep counselors from panicking or answering defensively while testifying.

Counselor educators are likely to have little experience with cross-examination. Inviting guest speakers such as community attorneys and counselors with expert testimony experience to counseling classes can provide students with concrete examples of the cross-examination process.

 

Courtroom etiquette

Etiquette in the courtroom may appear commonsense, but it is a topic that is often overlooked. Appropriate dress and behavior should not be disregarded when preparing counselors for court because these are signs that will indicate the professionalism of the counselor. Suits or work attire is recommended. Also limit accessories that may cause a distraction. Dressing properly is one of the simplest ways a counselor can establish credibility in the courtroom.

Body language is equally significant. Body language can communicate strength or weakness. It should communicate that the counselor is confident, knowledgeable and strong. Jamie Hamlet asserts (practicenotes.org/vol12_no4/testifying.htm) that language can establish counselors’ credibility with the jury and deters the deference attorney from antagonizing them. Body language is an important component in training to be a counselor. Therefore, counselors should already be familiar with the significance of communicating positive body language on the stand as a witness. By displaying the proper posture of sitting straight and leaning forward, counselors will express assertiveness and professionalism. Facial expressions should demonstrate genuine concern and thoughtfulness.

Furthermore, counselors should speak clearly and politely to those in the courtroom. Counselors should declare with authority and conviction if they are confident about a conclusion made regarding their case. Conversely, it is recommended that counselors refrain from being argumentative or defensive if challenged by an opposing attorney. Being argumentative may be perceived as disrespectful and unprofessional.

Frequently, witnesses are not permitted in the courtroom until it is time to give their testimony because attorneys do not want proceedings from the hearing to contaminate witnesses. Therefore, counselors should be careful who they speak with and limit their conversations. Forge and Henderson warn that speaking with a witness on the opposite side of the case could cause a mistrial.

 

Answering questions during testimony

Responding to questions asked by attorneys during testimony can be very challenging and intimidating. But with proper preparation, this process doesn’t have to be so daunting. Counselor educators should teach counseling students various strategies related to answering questions in the courtroom.

Always tell the truth. This is the No. 1 concept to remember when testifying in court. Do not waver from this. Do not embellish your statements during testimony. Simply tell the truth and state the facts. If a question is asked that you do not know, merely state that you do not know the answer. Often witnesses think that they must have an explanation for each question asked of them and then feel pressured to speak. Counselors must understand that making an untruthful statement can ruin their credibility and harm the client’s case.

Community members who serve as jurors often place their trust in expert witnesses such as doctors, counselors, police officers, etc. Therefore, jurors will do their best to believe an expert’s testimony if credibility is established. If an expert witness betrays this trust by being dishonest or disrespectful on the stand, Laurence Miller states (in “May It Please the Court: Testifying Tips for Expert Witnesses”) that jurors are likely to disregard the witness testimony, harming the client’s case. Being honest and truthful increases the possibility that jurors will believe the testimony of the counselor.

Witnesses should take time to listen to the attorney’s questions and to formulate their responses. Simplicity is key. The more words that are spoken, the more questions that can be asked. If a yes-or-no question is asked, simply answer yes or no. Furthermore, the language that witnesses use should be simple. Laypeople will not typically understand the jargon used in the counseling field. Speak in a way that will be easily understood by someone outside of the profession.

Cross-examination is designed to be confrontational, causing one to feel pressured. Counselors should expect to be challenged on the witness stand. Learn not to take such challenges personally and to exhibit grace under pressure without becoming flustered or annoyed or losing your temper. Well-prepared counselors are ready to defend their opinions and remain firm on the conclusions made while testifying. This stance exhibits confidence, expertise and assurance to a judge and jurors.

Attorneys may attempt to fluster witnesses. This may involve asking numerous questions rapidly, speaking loudly and acting in an intimidating manner. When training to work with clients, counselors are expected to remain cool, calm and nonjudgmental during counseling sessions. These same skills should be applied during courtroom testimony. Educators should prepare counselors for this tactic and provide them with techniques to remain calm.

 

Conclusion

It has been established that counselor educators play a significant and vital role in educating and preparing counselors for testifying in court on behalf of their clients. Including material on court testimony in counselor education curricula protects both students and their future clients. Incorporating the topics discussed in this article into class syllabi and the overall curriculum is essential to preparing counselors to serve as competent witnesses and exceptional representatives of the counseling profession.

 

 

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Margaret Taylor is a licensed professional counselor and supervisor in Alabama, having served as a counselor for more than 10 years. In addition, she is enrolled as a second-year doctoral student in the Auburn University counselor education and supervision program. Margaret has advocated for children and testified as an expert witness in numerous courts, including in criminal trials, custody cases and juvenile hearings. She has presented at state and regional conferences, providing counselors with the necessary tools to serve as effective witnesses in court for clients and the counseling profession. Contact her at barnema@auburn.edu.

 

 

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Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.

 

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