Concerns that Can Keep You Up at Night – Subpeonas

Sometime during the course of your professional work as a psychotherapist, you will likely be served with a subpoena to testify in court or at a deposition, or to produce a copy of a client’s file. You can be served a subpoena at your home, at your business, or through the U.S. mail. This often causes a great deal of anxiety or discomfort, along with questions from co-workers and family members such as “Are you in trouble?” or “What’s going on?” You may ask yourself, “What about my vacation coming up during the time I’m supposed to testify?”

The good news is this: if the party who has subpoenaed you has signed your informed consent form modeled after one on my website, "Informed Consent - Interacting with the Legal System," you may be entitled to a substantial sum for your time as an expert witness. I have included recommended fees on this form but you can always change the fees to what you think is appropriate.

Below is some advice to help you through this process.

1. Always remember that you don’t have a dog in this fight. Just answer the questions that are asked of you and keep it short.

2. That said, don’t answer questions you are not qualified to answer, or that call for speculation. For instance, if asked your opinion on custody issues, you can say that you were not hired to do a custody evaluation and cannot speak to that.

3. Read the subpoena carefully. It may ask that you bring documents to court or to the deposition, listed as Exhibit A attached to the subpoena.

4. If you have made a diagnosis, be sure to list the 7-8 criteria you used to formulate the diagnosis. There will be lots of questions about the criteria for diagnosis.

5. Always remember to get a release from the client if they are asking you to testify in court or at a deposition.

6. Many of these litigative experiences are custody cases, and you can count on one or both parties being angry with some of your answers. Just answer the questions honestly but be aware that their anger may result in a board complaint.

7. You may wish to incorporate into your informed consent my forms linked here, “Informed Consent - Interacting with the Legal System,” (mentioned above) and “Informed Consent - Working with Minors.” These and other forms are located on my website, howardgoldconsulting.com. In the case of minors, get both parents to sign. You never know who will serve you with a subpoena.

8. If the party who subpoenaed you has signed your consent form modeled after “Informed Consent - Interacting with the Legal System,” bring it with you to court. If they don’t pay your expert witness fee in advance or at the end of your testimony, show the judge your signed form and ask that the fee be awarded to you. If you are testifying at a deposition, advise the lawyer of the party who issued the subpoena that you require payment in advance of the deposition.

9. If the date set for the deposition or court appearance conflicts with a major event or trip, you can contact the court in writing to ask for a continuance. Your motion for continuance must state that your request is not being made for the purpose of delay. Your request will be considered by the judge, but a change in date is not automatic.

10. You must attend a deposition or court appearance if subpoenaed to do so or you are subject to contempt of court. This may result in a $300 fine and up to 20 days in jail.

11. You are not mandated to speak with attorneys, guardian ad litems, or alcohol evaluators in advance of testifying if you don’t want to. The subpoena only requires you to attend a deposition or court hearing, or to provide your therapy file with the requisite release. Anything else is your voluntary choice with a release from the client.

12. If you are served with a subpoena from a county in which you do not reside, the subpoena – in order to be valid – must be accompanied by a check for $25 for the witness fee plus $.45 per mile for travel from your home to the courthouse or to a lawyer’s office to testify. You can still ask for additional professional fees if they have signed your informed consent form that outlines those fees (see #7 above). Be sure to bring the signed form with you to court to present to the judge.

13. If you receive a subpoena, you can go to my website to schedule time with me to talk about it before contacting your malpractice insurance provider. I’ll let you know if you should contact your provider.

I am always available to you to help you with legal and ethical issues in your practice. Let me know how I can help.

Take care of yourself… and schedule that vacation.

Howard